The Grand Council of the Crees

Principle of Democracy in International Law

Potentially Favourable Uses in the Global Indigenous Context

Posted: 2005-10-31

Introduction

The issue has arisen as to whether the principle of democracy should be embraced by Indigenous peoples that are involved in the standard-setting processes at the United Nations and the Organization of American States (OAS). This brief paper seeks to respond to this basic question.

In considering the principle of democracy, it is important to make a distinction between how it is applied by States at the domestic level and the nature and scope of the principle under international law. It is widely recognized that numerous States in all parts of the world have abused, and often continue to abuse, the notion of democracy within their own country. These abuses have led some Indigenous people to cast doubt on the merits of including the principle of democracy in determining human rights norms at the international level.

However, the value of a legal principle should not simply be assessed on whether it is being distorted or otherwise misused by others. Otherwise, virtually all principles would tend to be rejected despite their essential positive aspects. For example, the principle of respect for human rights has been repeatedly violated by numerous States and others in the Indigenous context. This is especially evident in relation to the human right to self-determination and the interrelated right to development.

What is being suggested for inclusion in international human rights instruments concerning Indigenous peoples is the principle of democracy as it is understood under international law. The abuses that occur within domestic legal systems often have little or no resemblance to the international principle. Democracy and other international standards could help to substantially improve the human rights record of many States.

Therefore, it is vital to examine the content of the democratic principle in international law as well as its relationship to other key principles and values. The present paper seeks to illustrate the meaning of this principle and what is required for its legitimate application. This is mainly done by providing quotes from international instruments, U.N. General Assembly, human rights bodies, Special Rapporteurs and jurists, among others. These references serve to demonstrate the potentially far-reaching significance and diverse applications of the principle of democracy under international law.

I.          There is no single model of democracy. Self-determination is the oldest aspect of democratic entitlement and its denial is incompatible with true democracy. A free and democratic society is also committed to equality and social justice.

U.N. General Assembly, 2005 World Summit Outcome, High-Level Plenary Meeting of the U.N. General Assembly, A/60/L.1, 15 September 2005, p. 31, para. 135:

We reaffirm that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination. [emphasis added]

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), p. 17, para. 30:

The following are the Chairperson’s final conclusions:

There is no single model of democracy or of democratic institutions. Indeed, the ideal of democracy is rooted in past and emerging philosophies and traditions from all parts of the world, including particular philosophical writings, ancient texts, spiritual traditions, and traditional mechanisms originating in east and west, north and south. Thus, we must not seek to export or promote any particular national or regional model of democracy or of democratic institutions. On the contrary, a key strength of this approach is its recognition that each society and every context has its own indigenous and relevant democratic institutional traditions. [emphasis in original]

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, p. 4, para. 3:

The Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights provide democracy’s essential ingredients, including the principle and right of self-determination …

And at p. 6, para. 7:

Modern democracy also has the principles of equality and self-determination as two of its main attributes. Equality and non-discrimination cement social cohesion and contribute to peace and security. Democratic systems claiming adherence to human rights must aspire to the attainment of political as well as social and economic democracy.

R. Stavenhagen, “Self-Determination: Right or Demon?” in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives (New York: St. Martin’s Press, 1996) 1 at p. 8:

The link between self-determination and democracy must be strengthened, in theory as well as in practice, in policy as well as in process. The violence we see around is not generated by the drive for self-determination, but by its negation. The denial of self-determination, not its pursuit, is what leads to upheavals and conflicts. And the denial of self-determination is essentially incompatible with true democracy. Only if the peoples’ right to self-determination is respected can a democratic society flourish ... [emphasis added]

T. Franck, “The Emerging Right to Democratic Governance”, (1992) 86 Am. J. Int’l L. 46 at p. 52:

...self-determination is the oldest aspect of the democratic entitlement...Self-determination postulates the right of a people in an established territory to determine its collective political destiny in a democratic fashion and is therefore at the core of the democratic entitlement.

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, Art. 1:

The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.

Democracy is essential for the social, political, and economic development of the peoples of the Americas.

U.N. Commission on Human Rights, Promotion of a democratic and equitable international order, Res. 2003/63, 24 April 2003, para. 4:

Affirms that a democratic and equitable international order requires, inter alia, the realization of the following:           
(a) The right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development;           
(b) The right of peoples and nations to permanent sovereignty over their natural wealth and resources;   
(c) The right of every human person and all peoples to development, as a universal and inalienable right and an integral part of fundamental human rights;
(d) The right of all peoples to peace …

Reference re Secession of Québec, [1998] 2 Supreme Court Reports 217 (Canada), para. 64:

 … democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities

     The Court must be guided by the values and principles essential to a free and democratic society which … embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. [emphasis added]

II.        Democracy is NOT simply “one person, one vote”. Rather, democracy and the rule of law require active participation of Indigenous peoples in national and international affairs.

D. Beetham, “Democracy and human rights: contrast and convergence”, Office of the High Commissioner for Human Rights, Seminar on the Interdependence Between Democracy and Human Rights, Geneva, 25 – 26 November 2002, para. 22:

Majority rule is not a basic democratic principle, as many people assume, and readers may note that it has not been mentioned in my analysis of key principles and institutions above. It is a second-best procedural device for settling disagreement when other methods (discussion, amendment, compromise) have been exhausted. … The basic principle from which the majoritarian procedure of counting heads derives is that of political equality (‘everyone to count for one and none for more than one’); but it becomes undemocratic as soon as it threatens that same principle of political equality.

And at para. 24:
In conclusion, the basic principle is that of political equality, and the majoritarian procedure is only valid in so far as it embodies and does not infringe this principle.

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), p. 6, para. 7:

Modern democracy also has the principles of equality and self-determination as two of its main attributes. Equality and non-discrimination cement social cohesion and contribute to peace and security. Democratic systems claiming adherence to human rights must aspire to the attainment of political as well as social and economic democracy. Democracy also entails free and fair elections. However, competitive elections constitute only one element of democracy and serve the purpose of facilitating renewal of leadership and expanding the choices available to the electorate. The critical principle that should inform the choice and construction of any democracy-friendly electoral system should be the optimization of representation of marginalized groups. [emphasis added]

And at p. 18, para. 30:

And at p. 19:

A. Cassese, International Law (Oxford/N.Y.: Oxford University Press, 2001), at 105:

… self-determination meant that peoples and nations were to have a say in international dealings: sovereign Powers could no longer freely dispose of them, for example by ceding or annexing territories without paying any regard to the wishes of the populations concerned, through plebiscites or referendums.

Declaration of Machu Picchu on Democracy, the Rights of Indigenous Peoples and the Fight Against Poverty, Lima – Machu Picchu, July 28-29, 2001, adopted by the Presidents of the member states of the Andean Community (Bolivia, Columbia, Ecuador, Peru, and Venezuela). Reprinted in OEA/Ser.K/XVI, GT/DADIN/doc.34/01, 29 October 2001, para. 9:

Consolidating democracy and the rule of law in our countries presupposes policies to ensure the active participation of indigenous peoples in every aspect of national life.

U.N. General Assembly, Implementation of the United Nations Millennium Declaration, Report of the Secretary-General, A/58/323, 2 September 2003, p. 15, para. 84:

Democracy and human rights, though distinct concepts, are closely interlinked. Democracy, as a human right in itself, is implied in article 21 of the Universal Declaration of Human Rights, but it only functions in its fullest sense when other human rights are respected. [emphasis added]

III.       True democracies safeguard the rights of vulnerable, disadvantaged and marginalized groups. Where these “voices” are suppressed, real democracy is absent.

Office of the High Commissioner for Human Rights, The OHCHR Plan of Action: Protection and Empowerment, Geneva, May 2005, p. 9, para. 19:

True democracies allow dissent and opposition and safeguard the rights, interests and “voice” of minorities, women, and vulnerable, disadvantaged and marginalized groups. Where these freedoms are denied, real democracy is absent. Giving effect to democratic principles necessitates the peaceful transition of power, an active and vibrant civil society, human rights defenders, free and responsible media, and effective judicial and independent oversight mechanisms. It also requires the building of strong laws and institutions of democratic governance, including parliaments. [emphasis added]

IV.       Principles of democracy, rule of law and respect for human rights are interrelated. Democracy requires respect for human rights. Without such respect, democracy could be oppressive and lack legitimacy.

U.N. Commission on Human Rights, Report of the second expert seminar “Democracy and the rule of law” (Geneva, 28 February-2 March 2005): Note by the secretariat, E/CN.4/2005/58, 18 March 2005, p. 6, para. 8:

Prof. [Diane] Shelton emphasized that, in a practical sense, democracy, rule of law and respect for human rights were indivisible and interdependent because democracy without human rights and the rule of law was oppression, human rights without democracy and rule of law was anarchy, and rule of law without democracy and human rights was tyranny. [emphasis added]

U.N. General Assembly, 2005 World Summit Outcome, High-Level Plenary Meeting of the U.N. General Assembly, A/60/L.1, 15 September 2005, p. 28, para. 119:

We recommit ourselves to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations, and call upon all parts of the United Nations to promote human rights and fundamental freedoms in accordance with their mandates. [emphasis added]

And at p. 28, para. 120:

We reaffirm the solemn commitment of our States to fulfil their obligations to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law. The universal nature of these rights and freedoms is beyond question. [emphasis added]

B. Boutros-Ghali, An Agenda for Peace: Report of the Secretary General, U.N. Doc. A/47/277, 17 June 1992, at p. 22, para. 81:

Democracy within nations requires respect for human rights and fundamental freedoms, as set forth in the [U.N.] Charter...This is not only a political matter.

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), p. 17, para. 30:

The following are the Chairperson’s final conclusions:

And at p. 18, para. 30:

Office of the High Commissioner for Human Rights, The OHCHR Plan of Action: Protection and Empowerment, Geneva, May 2005, p. 9, para. 19:

… even States that practice torture, summary executions and official discrimination claim to be democratic. Human rights standards must underpin any meaningful conception of democracy, so that physical integrity is protected and freedoms of participation, elections, assembly, association, opinion, expression, and information are guaranteed. [emphasis added]

V.        Democracy, development and human rights are interdependent and mutually reinforcing.

U.N. General Assembly, 2005 World Summit Outcome, High-Level Plenary Meeting of the U.N. General Assembly, A/60/L.1, 15 September 2005, p. 31, para. 135:

We stress that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing. [emphasis added]

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, preamble:

… economic growth and social development based on justice and equity, and democracy are interdependent and mutually reinforcing …

VI.       Peace, justice, democracy and respect for human rights are interrelated.

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, preamble:

… the values and principles of liberty, equality, and social justice … are intrinsic to democracy …

And at Art. 27:

… democratic values … includ[e] liberty and social justice.

Declaration on Security in the Americas, adopted at the third plenary session of October 28, 2003, Special Conference on Security, Mexico City, OEA/Ser.K/XXXVIII, CES/DEC. 1/03 rev.1, 28 October 2003, at para. 3:

Peace is a value and a principle in itself, based on democracy, justice, respect for human rights, solidarity, security, and respect for international law.

And at para. 5:

We reaffirm that democracy is a right and an essential shared value that contributes to the stability, peace, and development of the states of the Hemisphere, and its full exercise is vital to enhancing the rule of law and the political, economic, and social development of peoples. We will promote and defend democracy through implementation of the OAS Charter and the Inter-American Democratic Charter and by strengthening the inter-American system for the protection of human rights. [emphasis added]

U.N. Secretary-General, “Secretary-General calls for renewed determination to ensure peace, development, human rights for indigenous people, in international message”, Press Release, SG/SM/9437, HR/4784, OBV/433, 30 July 2004:

For far too long, indigenous peoples’ lands have been taken away, their cultures denigrated or directly attacked, their languages and customs suppressed, their wisdom and traditional knowledge overlooked or exploited, and their sustainable ways of developing natural resources dismissed.  Some have even faced the threat of extinction.

On this 10th anniversary of the International Day of the World’s Indigenous People [August 9], let us remember the most fundamental principles of the United Nations Charter -- peace, development and human rights -- and reaffirm our determination to broaden the circle of solidarity for indigenous peoples so that these principles are turned into practice for indigenous peoples everywhere.

U.N. Commission on Human Rights, Promotion of peace as a vital requirement for the full enjoyment of all human rights by all, Res. 2003/61, 24 April 2003, para. 5:

Urges all States to respect and to put into practice the principles and purposes of the Charter of the United Nations in their relations with all other States, irrespective of their political, economic or social systems, as well as of their size, geographical location or level of economic development …

VII.     Democracy promotes preservation and stewardship of the environment. This includes achieving sustainable development for the benefit of future generations.

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, Art. 15:

The exercise of democracy promotes the preservation and good stewardship of the environment. It is essential that the states of the Hemisphere implement policies and strategies to protect the environment, including application of various treaties and conventions, to achieve sustainable development for the benefit of future generations.

World Summit for Social Development, Copenhagen Declaration on Social Development, adopted at the 14th plenary meeting, 12 March 1995, U.N. Doc. A/CONF.166/9, Annex I, para. 4:

We are convinced that democracy and transparent and accountable governance and administration in all sectors of society are indispensable foundations for the realization of social and people-centred sustainable development.

Cotonou Agreement (Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part), signed in Cotonou on 23 June 2000, 2000/483/EC, Official Journal L 317, 15/12/2000 P. 0003 – 0353, Art. 9(1):

Respect for all human rights and fundamental freedoms, including respect for fundamental social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development.

Johannesburg Declaration on Sustainable Development, adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4 September 2002, para. 25:

We reaffirm the vital role of the indigenous peoples in sustainable development.

And at para. 26:

We recognize sustainable development requires a long-term perspective and broad-based participation in policy formulation, decision-making and implementation at all levels. As social partners we will continue to work for stable partnerships with all major groups respecting the independent, important roles of each of these.

And at para. 31:

To achieve our goals of sustainable development, we need more effective, democratic and accountable international and multilateral institutions.

United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), reprinted in (1993) 32 I.L.M. 1661, at para. 20:

The World Conference on Human Rights recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them.

VIII.    Racism is incompatible with democracy. Elimination of all forms of discrimination, protection of Indigenous peoples’ human rights and respect for cultural diversity all serve to strengthen democracy.

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, Art. 9:

The elimination of all forms of discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the Americas contribute to strengthening democracy … [emphasis added]

U.N. Commission on Human Rights, The incompatibility between democracy and racism, Res. 2003/41, 23 April 2003, para. 1:

Remains convinced that political platforms and organizations based on racism, xenophobia or doctrines of racial superiority and related discrimination must be condemned as incompatible with democracy and transparent and accountable governance;

And at para. 2:

Condemns legislation and practices based on racism, racial discrimination, xenophobia and related intolerance as incompatible with democracy and transparent and accountable governance;

And at para. 3:

Reaffirms that racism, racial discrimination, xenophobia and related intolerance condoned by governmental policies violate human rights and may endanger friendly relations among peoples, cooperation among nations, international peace and security and the harmony of persons living side by side within one and the same State …

U.N. Commission on Human Rights, Strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy, Res. 2003/35, 23 April 2003, para. 1:

Declares that popular participation, equity, social justice and non-discrimination are essential foundations of democracy …

World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration, adopted in Durban, South Africa, 8 September 2001, para. 103:

We recognize the consequences of past and contemporary forms of racism, racial discrimination, xenophobia and related intolerance as serious challenges to global peace and security, human dignity and the realization of human rights and fundamental freedoms of many people in the world, in particular Africans, people of African descent, people of Asian descent and indigenous peoples;

IX.       Democracy is undermined by poverty and low levels of human development. Democracy is inextricably linked to all human rights, socio-economic progress and development.

Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001, Art. 12:

Poverty, illiteracy, and low levels of human development are factors that adversely affect the consolidation of democracy.

And at Art. 13:

The promotion and observance of economic, social, and cultural rights are inherently linked to integral development, equitable economic growth, and to the consolidation of democracy in the states of the Hemisphere.

Office of the High Commissioner for Human Rights, The OHCHR Plan of Action: Protection and Empowerment, Geneva, May 2005, p. 10, para. 21:

The poor as a group are discriminated against wherever they are found, including in affluent countries. Impunity may arise by design, as an official policy, or by default, when inefficient justice systems prove inadequate to provide redress for individuals. Democracy is undermined by poverty, discrimination and weak institutions. In countries in conflict it is difficult to establish strong and fair justice systems. Terrorism creates public tolerance for discriminatory repression; aggressive counter-terrorism often seeks to circumvent (and therefore undermine) judicial guarantees. [emphasis added]

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), at pp. 18-19 (Chair’s final conclusions):

X.        Democratic governance is not only important within States. It is also important at international and regional levels.

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), p. 19 (Chair’s final conclusions):

XI.       Democracy is threatened by abuses, poverty, inequality, exclusion of women, etc.

U.N. Commission on Human Rights, Continuing dialogue on measures to promote and consolidate democracy: Report of the High Commissioner for Human Rights submitted in accordance with Commission resolution 2001/41, E/CN.4/2003/59, 27 January 2003, (expert seminar on the interdependence between democracy and human rights, Office of the High Commissioner for Human Rights, 25-26 November 2002, Geneva), p. 19 (Chair’s final conclusions):

Conclusions

Under international law, democracy is generally viewed as a universal principle and value. Although Indigenous peoples globally are often subjected to serious abuses of democracy within States, these abuses lack basic legitimacy and constitute a threat to true democracy.

In the global Indigenous context, the principle of democracy in international law has a wide range of potentially useful applications. This is hardly surprising, since the right of peoples to self-determination and other human rights must be recognized in a genuine democracy. Self-determination is itself described as a “democratic entitlement”.

In addition, the international principle of democracy can serve to significantly reinforce a wide range of fundamental objectives, rights and values important to Indigenous peoples. These include, inter alia: eradication of poverty; safeguarding the integrity of the environment; full and effective participation in international and national affairs; equality and non-discrimination; women’s rights; cultural integrity and diversity; and the right to determine our own institutions, based on our own democratic conceptions and traditions.