1989-2010: the rise and fall of democratic governance in international law

This chapter concurs with the contention that the prescriptions as to how power must be exercised at the domestic level (by virtue of major international human rights conventions) and the prohibition of certain political regimes (e.g. apartheid and fascist regimes ) already enshrined in international law before the end of the Cold War were subsequently supplemented by a new democratic rule. Indeed, the author of these lines believes, as is explained in the following paragraphs, that the practice since the end of the Cold War - and the accounts thereof in the legal scholarship - witnessed - and gave form to - a consolidation of a principle of democratic legitimacy. This development constituted a remarkable phenomenon, for it came to limit the classical constitutional autonomy of each state. In that sense, the years 1989-2010 can be hailed as an unprecedented epoch of international law during which domestic governance - understood here in a traditional way as the use of public authority at the domestic level through a central governmental authority - has been regulated by international law to an unprecedented extent, the latter going as far as to prescribe a given type of procedure to accede to power at the domestic level. This chapter submits, however, that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007-2010 economic crisis as well as the inevitable instrumentalisation of democratisation policies of Western countries are currently cutting short the consolidation of such a principle of democratic legitimacy in international law. Contemporary practice shows signs of a return to realist and non-ideological foreign policies, threatening the centrality of democracy promotion in the foreign policies of most democratic states and the nascent consensus over the existence of international obligations about the democratic origin of power at the domestic level. The following paragraphs start by exposing the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the accounts thereof in the legal scholarship from 1989 to 2010 before seeking to critically appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3)