247 / 464
233
YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? …
One must also bear in mind that the emerging right to democratic entitlement seems
to have taken a few steps back in recent years.
53
In sum, outright regime change clearly has no legal basis in international law. Even the
Security Council, notwithstanding the general acceptance of its wide discretion in such
matters, may not qualify a non-democratic regime
ipso facto
as a threat to international
peace and security.
54
For these reasons, champions of just war theory are unsatisfied with
the Charter regime for its short-sighted, formalistic and inflexible approach towards
international relations. As indicated above, some view the traditional understanding of
the Charter regime as overly focused on preserving the status quo under the banner of
pluralism, instead of taking an active stance against oppressive regimes.
55
However, the case regarding forcible regime change is not closed completely. While
a state is barred from simply invading a foreign country to topple an oppressive and
illegitimate regime and installing a democratic government instead, some argue in favour
of a right to restore the
status
quo ante
in cases of violent overthrows of democratically-
elected governments
56
– ideally, once again, on the basis of Security Council-
authorization, but possibly even without – for instance, if democratic governments have
taken preventive measures to receive outside help in case of a coup d’état.
57
In other
words: Once a state is democratic, its democratic peers are not only allowed but even
encouraged to take action in order to ensure that it stays that way. Yet again, even this
more restrictive right to use force in the name of democracy is somewhat problematic;
the Security Council may arguably only qualify a violent overthrow by domestic powers
as a threat to international peace if substantial detrimental effects on other states or on
the civilian population are involved.
58
Secondly, international agreements among states
to help each other in cases of threats to the democratic system might be problematic, as
they could be void
ab initio
for violating the peremptory prohibition on the use of force.
59
53
Jean d’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law: A Reply to
Susan Marks’ (2011) 22/2
European Journal of International Law
549.
54
Fox and Roth (
supra
n 50), 340; Erika de Wet,
The Chapter VII Powers of the Security Council
(Hart
Publishing, 2004), 160-162.
55
Fernando Tesón, ‘Collective Humanitarian Intervention’ (1995) 17
Michigan Journal of International
Law
323, 334.
56
Franck (
supra
n 48), 91; see also Anthony Lake’s, assistant for national security affairs to Bill Clinton,
remarks ‘The Emerging Right to Democratic Governance’ at the John Hopkins University in September
1993, ‘From Containment to Enlargement’,
http://www.fas.org/news/usa/1993/usa-930921.htm.57
Jeremy I. Levitt, ‘Pro Democratic Intervention in Africa’ (2006) 24/3
Wisconsin International Law Journal
785; Malvina Halberstam, ‘The Copenhagen Document: Intervention in Support of Democracy’ (1993)
34
Harvard International Law Journal
163; W Michael Reisman, ‘Humanitarian Intervention and
Fledging Democracies’ (1995) 18
Fordham International Law Journal
794.
58
Nico Krisch, ‘Article 39’ in Bruno Simma, Daniel Erasmus-Khan, Gregor Nolte, and Andreas Paulus
(eds.),
The Charter of the United Nations. A Commentary
(OUP, 2012) 1272, 1288. See also Michael Byers
and Simon Chesterman, ‘“You, the People”: pro-democratic intervention in international law’ in Gregory
H. Fox and Brad R. Roth (eds),
Democratic Governance and International Law
(CUP, 2000) 259, 283.
59
Brad R. Roth, ‘The Illegality of “pro-democratic” invasion pacts’ in Gregory H. Fox and Brad R. Roth