246 / 464
232
RALPH JANIK
CYIL 6 ȍ2015Ȏ
and self-determination would lead to ‘ideological confrontations’, which would in
turn ‘become clashes of power.’
45
Two years later, the ICJ argued in similar fashion in its Nicaragua judgment when
opposing the concept of what it called ‘ideological intervention’,
i.e.
‘the creation of a
new rule opening up a right of intervention by one State against another on the ground
that the latter has opted for some particular ideology or political system.’
46
Yet, regime change in law and practice was never put off the table. On the contrary,
it gained new momentum in the waning ideological East-West conflict.
Inter alia
by
reference to the democratic peace theory, democracy was famously described as the
Hegelian end of history
47
by Francis Fukuyama and, correspondingly, as constituting
at the very least an emerging right under international law.
48
From here, it is basically
only a small step to growing impatient with blind and potentially dangerous spots
on the democratic landscape and feeling an urge to put words into deeds by actively
using force instead of idly standing by until peoples revolt against their non-democratic
governments.
49
Yet, proponents of this view are aware of the fact that the freedom of each and every
state to choose its own particular domestic governance system is still protected by the
fundamental principle of sovereignty and that non-democratic regimes will continue to be
acceptedmembersoftheinternationalsocie
50
anddonotargueinfavourofarighttoimpose
regime change by force.
51
After all, ‘peace loving’ is still understoodas referring to the actual
conduct of states towards other states and not to their internal system of governance.
52
45
Ibid
, 650.
46
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. ICJ Reports 1986, 14, paras. 263 and 266.
47
Francis Fukuyama, ‘The End of History?’
The National Interest
, Summer 1989; Francis Fukuyama,
The
End of History and the Last Man
(Avon Books, 1992).
48
Thomas M. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86/1
The American
Journal of International Law
46; Thomas M. Franck, ‘The Democratic Entitlement’ (1994) 29
University
of Richmond law Review
1; Christina M. Cerna, ‘Universal Democracy: An International Legal Right or
the Pipe Dream of the West?’ (1995) 27
NYU Journal of International Law and Politics
289. Gregory H.
Fox, ‘The Right to Political Participation in International Law’ (1992) 17
Yale Journal of International
Law
539.
49
Fukuyama (
supra
n 47), 280.
50
Gregory H. Fox and Brad R. Roth, ‘Democracy and international law’ (2001) 27
Review of International
Studies
327, 337
.
51
Franck, ‘The Emerging Right to Democratic Governance’, 84-85; Franck, ‘The Democratic Entitlement’,
23-25. (both
supra
n 48).
52
Ulrich Fastenrath, ‘Article 4’ in Bruno Simma, Daniel Erasmus-Khan, Gregor Nolte, and Andreas
Paulus (eds),
The Charter of the United Nations. A Commentary
(OUP, 2012) 341, 348.
Cf.
, however,
the early discussion in the Security Council on the Franco regime in Spain, Pollux, ‘The Interpretation
of the Charter’ (1946) 23
British Yearbook of International Law
54, 79.