TESTING THE STRENGTH OF DEMOCRATIC LEGITIMACY

Seyfullah Hasar

The split within the community of States this year on who to recognise as president in Venezuela seems to have touched a fault line in international law on recognition of governments. On this topical issue, it must be noted from the beginning that international law does not impose any form of political system on States; to follow a democratic or non-democratic path remains a sovereign prerogative. When the transition of power in a State is interrupted by an unconstitutional seizure like a coup d'état or revolution, the decisive criterion for an entity claiming to be the government to gain recognition from other States has traditionally been the ability to exert effective control over the State machinery. Under this effective control doctrine, therefore, it has been possible to legally attain power through bullets or ballots.

 

This doctrine, yet, has faced a serious challenge with the end of the Cold War after which the idea of an emerging right to democratic governance has gained traction. So many factors played role in this development. To start with, democracy as a political system has spread in many parts of the world. International organisations have adopted various binding instruments aimed at promoting and consolidating democracy. Most importantly, in some cases, the international community have given the elected governments the legal standing to speak on behalf of the State even when they have been effectively toppled or not allowed to hold reins at all. This commitment to democracy has gone as far as to use military force to safeguard the elected governments in countries such as Haiti, Sierra Leone, Côte d'Ivoire and The Gambia.

 

Yet, the repudiation of coups d'état in political discourse, which has become quite common in the post-Cold War era, did not transpire in every case to the non-recognition of the incoming governments. This inconsistent practice and some additional factors have led the recent scholarship to note a retreat from the emerging norm of democratic entitlement. The notable among these factors are the rise of undemocratic powers at a time the Cold War-esque multipolar world has started to show itself, and the increasing emphasis on values such as security, development and stability in international relations in a way overshadowing the democratic vitalism. One could add to this list the rise of populism as it further implicates the already existent definitional problems of ‘democracy’.

 

Recent practice on the application of this norm in political crisis-hit democratic States only seems to have underscored the mentioned retreat. When Mohamed Morsi, first elected president of Egypt, was ousted by the army in 2013 amid massive public protests demanding his resignation, the African Union deeming the transition as unconstitutional suspended the membership of the country as per its rules. Many States, however, were reluctant to condemn what happened and called for a new democratic transition rather than the reinstatement of the unlawfully ousted leader. The African Union has finally lifted the suspension of Egypt after new elections were held. This move, however, was in defiance of the Union’s own rule on ‘non-participation of the perpetrators of the unconstitutional change in the elections held to restore constitutional order’ as the new president was the former general who headed the military coup.

 

Another unconstitutional takeover of a democratically elected authority took place in 2014 when pro-Russian President Yanukovych of Ukraine was ousted amid violent public protests against his presidency by the parliament in an impeachment vote that actually fell short of the required three-quarters majority. The international community at large, however, welcomed the incoming government.

 

The reaction of the international community in the face of two proclaimed presidents in poverty-ridden Venezuela has proved elusive. In January 2019, some 50 States recognised Juan Guaidó, who was neither elected as president nor in effective control of the State, as the interim President of Venezuela in defiance of the incumbent Nicolás Maduro who, they disputed, has assumed office in the aftermath of an irregular election process. Based on a (controversial) reading of the constitution, recognising States deemed the head of the National Assembly, Guaidó, who they hoped will restore democracy, as deserving the seat of the presidency. Nonetheless, the rest of the countries did not follow suit, and the delegates sent by Maduro still continue to represent Venezuela in the United Nations.

 

If one is to draw a lesson from the foregoing cases, it seems that no normative excuse has been offered for ignoring the internationally validated election results in Egypt and Ukraine. In Venezuela, on the other hand, doubt in the legitimacy of the election results led to the derecognition of the effective government by some countries. When one thinks in a broader picture involving other cases of governmental recognition, as long as geopolitical reasons will continue to dominate the discretion of States in recognition decisions in the absence of certain normative principles, upholding the election results in one country but not another will make the charges of double standards unavoidable. This, in turn, will weaken the credibility and potency of the emerging norm of democratic legitimacy.

 

 

 

Seyfullah Hasar

Doctoral Researcher

The Brunel Lawyer

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