perpetual war a pragmatic sketch human rights quarterly

7/31/2019 Perpetual War a Pragmatic Sketch Human Rights Quarterly

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly29 (2007) 631673 2007 by The Johns Hopkins University Press

Perpetual War: A Pragmati Sketh

Jens Meierhenrich

AbSTRAcT

This article analyzes the promiseand limitso pro-democratic interven-tion in international law. It revisits Immanuel Kants inuential prescriptionor peace, developed in Perpetual Peace: A Philosophical Sketch (1795),which has served as the oundation or democratic peace theory. Thisarticle emphasizes the unintended consequences o pro-democratic inter-vention in the international system. It fnds arguments or the promotiono democratic entitlements deserving, but evidence or the existence o a

right to democratic governance in international law wanting. The analysis,which incorporates evidence rom cases, and synthesizes insights romscholarship in international law and international relations, casts doubton the morality o democracy in the pursuit o international peace andsecurity. It demonstrates that international lawyers have insufciently ap-preciated the act that democracy, i not handled with care, can underwritedemocratic warrather than democratic peace. This article argues that ithe international community, however defned, truly aspires to realize theKantian imperative o perpetual peace, it must enshrine democratic rights

in unamiliar cultures with more circumspection. Otherwise democraticrights become democratic wrongs, and policies o perpetual peace becomeprescriptions or perpetual war.

* Jens Meierhenrich is Assistant Proessor o Government and o Social Studies at HarvardUniversity, where he is also a Faculty Associate at the Weatherhead Center or InternationalAairs. He recently served as the Carlo Schmid Fellow in Trial Chamber II o the Interna-tional Criminal Tribunal or the Former Yugoslavia, and has previously worked with LuisMoreno Ocampo, the Chie Prosecutor o the International Criminal Court. A Rhodes Scholar,Proessor Meierhenrich is the author o a genocide trilogy, comprising The Rationality o

Genocide (Princeton: Princeton University Press, orthcoming); The Structure o Genocide(Princeton: Princeton University Press, orthcoming); and The Culture o Genocide(Princeton:Princeton University Press, orthcoming) as well as a series o articles on comparative andinternational law and politics. His research has been supported by, among others, the USHolocaust Memorial Museum, the Social Science Research Council, the American Councilo Learned Societies, the Japan Foundation, the American Bar Foundation, and the HarvardAcademy or International and Area Studies.


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Vl. 29632 HUMAN RIGHTS QUARTERLY

Well, my dear Adeimantus, what is the nature o tyranny?

Its obvious, I suppose, that it arises out o democracy. . . .

Then, as I was just saying, an excessive desire or liberty at the expense o

everything else is what undermines democracy and leads to the demand ortyranny.

Plato, The Republic1

I. INTRodUcTIoN

This article analyzes the promiseand limitso pro-democratic interven-

tion in international law. It revisits Immanuel Kants inuential prescriptionor peace, developed in Perpetual Peace: A Philosophical Sketch (1795),which has served as the oundation or democratic peace theory.2 The articleemphasizes the unintended consequences o pro-democratic interventionin the international system. It fnds arguments or the promotion o demo-cratic entitlements deserving, but evidence or the existence o a right todemocratic governance in international law wanting. The analysis, whichincorporates evidence rom cases, synthesizes insights rom scholarship ininternational law and international relations. It casts doubt on the morality

o democracy in the pursuit o international peace and security. As JohnOwen writes, Since liberalism is no fnal solution to the problem o war, itmust not be allowed to eace all other values in international lie. Shouldwe ignore Kants own caution, we may fnd ourselves fghting perpetual waror the sake o perpetual peace.3

The remainder is organized as ollows. Part II provides an overview odemocratic peace theory, with particular emphasis on Kants philosophy ointernational law. Part III examines the debate in international legal scholar-ship over a right to democratic governance in international law, a debate

that has co-evolved with the Kantian turn in international relations. PartIV analyzes the meaning o both advances or pro-democratic interventionin the international system. Part V inquires into the promise o promotingdemocratic ideology inand exporting democratic institutions torequentlyunamiliar cultures.4 Part VI concludes and considers implications.

1. Plato, the RePublic382 (Desmond Lee, trans., Penguin Books 2d ed. 1974) (1955). ForPlato, the defning attributes o democracy are equality o political opportunity and indi-vidual reedom (There is liberty and reedom o speech in plenty, and every individual

is ree to do as he likes.). Id. at 375. The usual caveats apply.2. immanuel Kant, Perpetual Peace: A Philosophical Sketch, in Kants Political WRitings93(Hans Reiss ed., 1970).

3. John M. Owen IV, International Law and the Liberal Peace, inDemocRatic goveRnanceanD inteRnational laW 343, 385 (Gregory H. Fox & Brad R. Roth eds., 2000).

4. For an important contribution to the study o democracy in unamiliar culturesand thevariety o meanings attached to the supposed idealsee FReDeRic c. schaFFeR, DemocRacyin tRanslation: unDeRstanDing Politicsinan unFamiliaR cultuRe (1998).


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2007 Perpetual War 633

II. dEMocRATIc PEAcE

The debate over the salience o the democratic peace has been heraldedas one o the most important discussions in international politics. Since the1980s, the democratic peace proposition

has excited both scholars and oreign policy makers. For scholars, it proposesa regularity o a strength rarely seen in social phenomena. Political scientistsdespairing o being able to predict the uture take heart at the prospect o sayingwith confdence that no two liberal states will wage war against one another.5

Outside the academy, the democratic peace theory

has rekindled ickering hopes that perpetual peace is within humankinds grasp.

The remarkable spread o political liberalism since the 1970s, most spectacularlyin Central and Eastern Europe but also in Southern Europe, Latin America, Asia,and Arica, combines with the proposition to suggest that there will be ewerwars in the coming yearsor at least that ewer pairs o states or dyads willmake war on each other.6

Democratic peace theory, in other words, has provided a ready-madeprinciple or oreign policy makers in a time, when, with no more Sovietthreat, principles are difcult to come by.7 This principle hasrather unex-pectedlyinormed not only the international ambition o the US administra-tion led by ormer President Bill Clinton, but the international ambition ohis successor as well. The terrorist attacks o 11 September 2001 inaugurateda period o conservative internationalism in American politics. Under theleadership o George W. Bush, the United States has, contrary to campaignpronouncements, become a proponent o pro-democratic intervention. Threequestions arise in this context: (1) What has occasioned the democratic turnin international ambition? (2) Is the democratic turn genuine? (3) What arethe consequences thereo or international security?

A. The Kantian Trip

Beore addressing the aorementioned questions, a discussion o Kantsphilosophy o international law is in order. In 1795, Kant distinguishedthree defnitive articles o peace, which together constituted a tripod opeace. In the contemporary international system, Kants defnitive articles o

5. John m. oWen iv, libeRal Peace, libeRal WaR: ameRican PoliticsanD inteRnational secuRity 67(1997).

6. Id. at 7.7. Id. For an introduction to democratic peace theory, see Debating the DemocRatic Peace

(Michael E. Brown, Sean M. Lynn-Jones, Steven E. Miller eds., 1996).


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peace correspond to the interlocking institutions o democracy (republican

constitution), economic interdependence (cosmopolitan right and uni-versal community), and international organizations (pacifc ederation).8Figure 1 depicts the constitutive sides o the Kantian tripod as well as theirinterrelationships.

Democracy. Bruce Russett and John Oneal have analyzed the unctiono democracy in the Kantian tripod:

Kant began his theorizing with attention to democracy. It is in many ways thelinchpin o his analysis. He was confdent that democracies would be morepeaceul than autocracies or a simple reason: in a democracy, those who would

bear the costs o a war are the ones who decide whether it shall be ought. 9

A passage rom Perpetual Peaceillustrates the point:

8. Kant, supra note 2, at 99, 104, 10708.9. bRuce Russett & John oneal, tRiangulating Peace: DemocRacy, inteRDePenDence, anD inteRnational

oRganizations 273 (2001). For important expositions o democratic peace theory, withparticular reerence to Kants philosophy o international law, see most importantly, Ken-neth N. Waltz, Kant, Liberalism, and War, 56 am. Pol. sci. Rev. 331 (1962); Michael W.Doyle, Kant, Liberal Legacies, and Foreign Aairs, 12 Phil. & Pub. aFF. 205 (1983)[here-

inater Doyle, Liberal Legacies]; Michael W. Doyle, Kant, Liberal Legacies, and ForeignAairs, Part 2, 12 Phil. & Pub. aFF. 323 (1983)[hereinater Doyle, Liberal Legacies Part2]; FRieDenDuRch Recht: Kants FRieDensiDeeunDDas PRoblemeineRneuen WeltoRDnung(MatthiasLutz-Bachmann & James Bohman eds., 1996); Bruce Russett, John R. Oneal, & DavidR. Davis, The Third Leg o the Kantian Tripod or Peace: International Organizationsand Militarized Disputes, 19501985, 52 intl oRg. 441 (1998); John R. Oneal & BruceRussett, The Kantian Peace: The Pacic Benets o Democracy, Interdependence, andInternational Organizations, 18851992, 52 WoRlD Pol. 1 (Oct. 1999).

Source: Adapted rom Bruce Russett and John Oneal, Triangulating Peace: Democ-racy, Interdependence, and International Organizations (New York: Norton, 2001),p. 35.

Figure 1. The Kantian Tripod


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I . . . the consent o the citizens is required to decide whether or not war is tobe declared, it is very natural that they will have great hesitation in embarkingon so dangerous an enterprise. For this would mean calling down on themselvesall the miseries o war, such as doing the fghting themselves, supplying the

costs o the war rom their own resources, painully making good the ensuingdevastation, and, as the crowning evil, having to take upon themselves a burdeno debt which will embitter peace itsel and which can never be paid o onaccount o the constant threat o new wars.10

Economic Interdependence. The achievement o economic interdepen-dence (what Kant believed to be a unction o the right o a stranger not tobe treated with hostility when he arrives on someone elses territory) rests onthe relationship between exchange in goods and services and the opportunity

costs o war.11

An increase in the ormer is said to bring an increase in thelatter, thereby reducing the incidence o international war. As Kant wrote,

the spirit o commercesooner or later takes hold o every people, and it cannotexist side by side with war. And o all the powers (or means) at the disposal othe power o the state, nancial powercan probably be relied on most. Thusstates fnd themselves compelled to promote the noble cause o peace, thoughnot exactly rom motives o morality.12

Michael Doyle puts it thus: Kant relied upon international commerce to

create ties o mutual advantage that would help make republics pacifc.13

The analysis o quantitative data has, by and large, borne out the pacifcconsequences o economic interdependence:

Higher levels o economically important trade, as indicated by the bilateraltrade-to-GDP ratio, are associated with ewer incidences o militarized interna-tional disputes. A one standard deviation increase in the bilateral trade-to-GDPratio reduces the annual probability o a dispute more than one-third below thebaseline rate. . . . Economic openness (the total trade-to-GDP ratio) is also as-sociated with a reduced risk o conict. . . . I both bilateral trade and openness

are increased, the likelihood o dyadic conict drops by 52 percent.14

International Organizations. Beore it can be ormally instituted, theperpetual peace also requires a pacifc ederation (oedus pacicum).15The purpose o this ederation, then and now, is the maintenance o inter-national peace and security:

10. Kant

, supra note 2, at 100.11. Id. at 105.12. Id. at 114.13. Doyle, Liberal Legacies Part 2, supra note 9, at 350.14. Russett & oneal, tRiangulating Peace, supra note 9, at 154. For an important critique, see

Joanne goWa, ballotsanD bullets: the elusive DemocRatic Peace 1419 (1999).15. As Kant wrote, the perpetual peace must be ormally instituted, or a suspension o

hostilities is not in itsel a guarantee o peace. Kant, supra note 2, at 98.


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This ederation does not aim to acquire any power like that o a state, butmerely to preserve and secure the reedom o each state in itsel, along withthat o the other conederated states, although this does not mean that theyneed to submit to public laws and to a coercive power which enorces them,

as do men in a state o nature.16

b. The Kantian Lgi

Prompted by the third wave o democratization, the collapse o the ormerSoviet Union, and the resulting end o the Cold War, Kants belie in therealization o a perpetual peace through the promotion o democracy,economic interdependence, and international organizations has become astaple o oreign policy-making in the advanced industrialized democraciesand leading international organizations. It eatured prominently in the UNAgenda or Peace, which was compiled under the stewardship o UN Sec-retary-General Boutros Boutros-Ghali, and the spread o democracy becamea policy pillar during the administration o ormer US President Clinton. Theadministration let it be known that the promotion o democratic ideologyand the export o democratic institutions,

does more than oster our ideals. It advances our interests because we know that

the larger the pool o democracies, the better o we, and the entire communityo nations, will be. Democracies create ree markets that . . . make or morereliable trading partners and are ar less likely to wage war on one another.While democracy will not soon take hold everywhere, it is in our interest to doall that we can to enlarge the community o ree and open societies . . . .17

Recent advances have departed rom the Kantian logic, as describedin the preceding section. In these advances, the emphasis is on the frst lego the Kantian tripoddemocracy. The operationalization o democracy as

an independent variable has since led to the development o two contend-ing explanations o the democratic peace: (1) ideology and (2) institutions,also known as the normative and the structural models o the democraticpeace.18 See Figure 2.

16. Id. at 104. For a tentative assessment o the salience o this leg o the Kantian tripodin the current international system, with particular reerence to regional organizations,see Bruce Russett, A Neo-Kantian Perspective: Democracy, Interdependence, andInternational Organizations in Building Security Communities, in secuRity communities

368 (Emanuel Adler & Michael Barnett eds., 1998); Jon C. Pevehouse, Democracyrom Outside-In? International Organizations and Democratization, 56 intl oRg. 515(2002).

17. The White House, A National Security Strategy o Engagement and Enlargement 37 (Feb. 1996), available athttp://www.as.org/spp/military/docops/national/1996/stra.htm [hereinater National Security Strategy 1996].

18. For a critical assessment, see Christopher Layne, Kant or Cant: The Myth o the Demo-cratic Peace, 19 intl secuRity 5 (1994), reprinted inDebatingthe DemocRatic Peace, supra


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Ideology. The normative model o the democratic peace ocuses on thecausal role o ideas, as opposed to interests. Zeev Maoz and Bruce Russettpresent the underlying argument:

Democratic regimes are based on political norms that emphasize regulatedpolitical competition through peaceul means. Winning does not require elimina-tion o the opponent, and losing does not prohibit the loser rom trying again.Political conicts in democracies are resolved through compromise rather thanthrough elimination o opponents.19

The normative model emphasizes the norms constituting the collectiveidentity o actors in a democratic polity instead o utilitarian cost-beneftcalculations or the complexity o decision-making processes.20 Two unc-

note 7 at 157. I should also mention, without elaboration, that democratic peace theoryknows o two major variants: (1) the monadic variant; and (2) the dyadic variant. Theormer holds that democracies are less war-prone than nondemocracies regardless o thecontext. The latter holds that democracies are not less war-prone than non-democracies

per se, but rather that democracies are less war-prone in their international interactionswith other democracies.19. Zeev Maoz & Bruce Russett, Normative and Structural Causes o Democratic Peace,

19461986, 87 am. Pol. sci. Rev. 624, 625 (1993). See also what remains, to this day,the most complete analysis o the democratic peace, namely bRuce Russett, gRasPingtheDemocRatic Peace: PRinciPlesFoRa Post-colD WaR WoRlD (1993).

20. Thomas Risse-Kappen, Democratic Peace Warlike Democracies? A Social ConstructivistInterpretation o the Liberal Argument, 1 euR. J. intl Rel. 491, 500 (1995).

Source: Adapted rom John M. Owen, IV, International Law and the Liberal Peace,in Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and InternationalLaw(Cambridge: Cambridge University Press, 2000), p. 359. See also idem., HowLiberalism Produces Democratic Peace, International Security, Vol. 19, No. 2 (Fall1994), reprinted in Michael E. Brown, Sean M. Lynn-Jones, Steven E. Miller, eds.,Debating the Democratic Peace(Cambridge: MIT Press, 1996), p. 131.

Figure 2. The Causal Logic O Democratic Peace


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tions o democratic ideology, which itsel is a concatenation o democraticnorms, can be distinguished: (1) democratic ideology as a communicationdevice; and (2) democratic ideology as a regulatory device. Democraticideology, in other words, provides a ramework o shared and collectiveunderstandings (what Emile Durkheim termed collective consciousness)as well as a mechanism or social interaction.

The relationship between domestic politics and international security inthe normative model is conceived as ollows: Political culture and politicalnorms constitute images that a state transmits to its external environment.One o the most important images that a democratic state can communicateto its environment is a sense o political stability.21 Democratic states arebelieved reasonable, predictable, and trustworthy, because they are governed

by their citizens true interests, which harmonize [qua political culture andpolitical norms] with all individuals true interests around the world.22

Institutions. The structural model o the democratic peace revolvesaround the distributional eects o institutions. Institutions are said to createa dependency between leaders and the electorate in which the benefts ousing military orce accrue to leaders, while its costs are dispersed among thepopulation.23 The structural model emphasizes the institutional constraintso leaders.24 In democracies, the argument goes, a plethora o institutionsexists that prevents would-be renegade leaders o democratic polities rom

embarking upon military adventures abroad. Among them are oppositionparties, periodic elections, and the presence o a legislature.25

Liberalism, the ideology o democracy, says, that the people who fghtand und war have the right to be consulted, through representatives theyelect, beore entering it.26 The election o representatives qua democraticinstitutions introduces the imperative o deliberation into oreign policy-mak-

21. Maoz & Russett, Normative and Structural Causes o Democratic Peace, supra note 19,

at 625. On communicative action in the making o the democratic peace, see Risse-Kappen, supra note 20, at 491.

22. Owen IV, International Law and the Liberal Peace, supra note 3, at 354.23. SeeKant, supra note 2; Russett, gRasPingthe DemocRatic Peace, supra note 19. For recent

empirical assessments by international lawyers, see DemocRatic accountabilityanDthe useoFFoRcein inteRnational laW(Christine Koh & Harold Jacobson eds., 2002). More generally,seehelen milneR, inteRests, institutions, anD inFoRmation: Domestic PoliticsanD inteRnationalRelations(1997); Lisa L. Martin, Legislative Infuence and International Enagagement, inlibeRalizationanD FoReign Policy 67104 (Miles Kahler, ed., 1997); lisa l. maRtin, DemocRaticcommitments: legislatuResanD inteRnational cooPeRation (2000).

24. For an alternative explanation o institutional eects in the democratic peace, see

Kenneth A. Schultz, Do Democratic Institutions Constrain or Inorm? Contrasting TwoInstitutional Perspectives on Democracy and War, 53 intl oRg. 233 (1999).25. goWa, supra note 14, at 7. On elections and the democratic peace, see, most importantly,

KuRt tayloR gaubatz, electionsanD WaR: the electoRal incentiveinthe DemocRatic PoliticsoFWaRanD Peace (1999). More generally, see Kurt Taylor Gaubatz, Democratic States andCommitment in International Relations, 50 intl oRg. 109 (1996).

26. Owen IV, International Law and the Liberal Peace, supra note 3, at 356.


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ing, and, in turn, underwrites the attitudinal, behavioral, and constitutionalconsolidation o democracy.27 The democratic constraints, or checks andbalances, in the domestic realm are said to spill over into the internationalrealm, where they constrain international actors, and international coopera-tion substitutes or international war as a means o dispute resolution.

The causal logic o the democratic peace is straightorward and intuitivelyappealing. See Figure 2. Democratic ideas orm the independent variable.These ideas produce a democratic ideology and democratic institutions.While democratic ideology enshrines the value o democracy, democraticinstitutions realize these values. The result is a marketplace o ideas thatmakes possible ree debate, and a prohibition o war against democracies.This in turn contributes to an international reputation o deliberative politics:

Posing no threat to each other, democratic states tend to view their relation-ships with other democratic states in positive-sum, rather than zero-sum,terms.28 In conjunction democratic ideology and democratic institutionsconstrain government and underwrite the democratic peace.

In the 1995 version o the policy document, A National Security Strat-egy o Engagement and Enlargement, the US administration made explicitreerence to the mutually constitutive roles o democratic ideology anddemocratic institutions:

It is thereore in our interest that democracy be at once the oundation andthe purpose o the international structures we build through this constructivediplomacy: the oundation, because the institutions will be a reection o theirshared values and norms; the purpose, because i political and economic insti-tutions are secure, democracy will ourish.29

III. dEMocRATIc RIGHTS

The ascendancy o the democratic peace proposition in the late twentiethcentury coincided with important developments in international law. Leading

27. This tripartite standard o democratic consolidation stems romJuan J. linz & alFReD stePan,PRoblemsoF DemocRatic tRansition anD consoliDation: southeRn euRoPe, south ameRica, anDPost-communist euRoPe56 (1996).

28. Randall L. Schweller, Domestic Structure and Preventive War: Are Democracies MorePacic?, 44 WoRlD Pol. 235, 251 (1992). For an account o reputation in the internationalsystem, see Jonathan meRceR, RePutationanD inteRnational Politics (1996).

29. National Security Strategy 1996, supra note 17, 36. Critics o democratic peace

theory abound. I do not, however, propose to enter the debate over the salience o thedemocratic peace in this article. For important challenges, aside rom the ones eaturedin the analysis, see David E. Spiro, The Insignicance o the Democratic Peace, 19 intlsecuRity50 (1994), reprinted in Debatingthe DemocRatic Peace, supra note 7, at 202; HenryS. Farber & Joanne Gowa, Polities and Peace, 20 intl secuRity 123 (1995), reprinted inDebatingthe DemocRatic Peace, supra note 7, at 239; William R. Thompson, Democracyand Peace: Putting the Cart Beore the Horse?, 50 intl oRg. 141 (1996).


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scholars, rom Thomas Franck to Michael Reisman, have made the case oran emergent right to democratic governance in customary internationallaw, and deended the morality o pro-democratic intervention. Botharguments, albeit in dierent ways, seek to establish democratic rights ininternational law.

A. Freem

Thomas Franck led the opening charge. Inuenced undoubtedly by thechanges in the international system, Franck asserted in the early 1990s thatdemocracy was on the way to becoming a global entitlement, one that

increasingly will be promoted and protected by collective internationalprocesses.30 Drawing on the imposition, by the Organization o AmericanStates (OAS), o an unprecedented legal obligation on the state o Haiti,Franck identifed a transormation o the idea o a democratic entitlementrom moral prescription to international legal obligation.31

The OAS resolution stated that the solidarity o the American states andhigh aims which are sought through it require the political organization othose states on the basis o the eective exercise o representative democ-racy.32 Franck welcomed the resolution with the ollowing words:

Undeniably, a new legal entitlement is being created, based in part on customand in part on the collective interpretation o treaties. This newly emerginglawwhich requires democracy to validate governanceis not merely thelaw o a particular state that, like the United States under its Constitution, hasimposed such a precondition on national governance. It is also becoming arequirement o international law, applicable to all and implemented throughglobal standards, with the help o regional and international organizations.33

The quest or perpetual peace in this period was underwritten rom two

sides o the Kantian tripod. The imposition o democracy by internationalorganizations gained legitimacy, according to Franck, by virtue o its nor-mative and customary evolution in the twentieth century. This evolution

30. Thomas M. Franck, The Emerging Right to Democratic Governance, 86 am. J. intl l.46, 46 (1992)[hereinater Franck, Democratic Governance]. See alsoGregory H. Fox,The Right to Political Participation in International Law, 17 yale J. intl l. 539 (1992);James Craword, Democracy and the Body o International Law, in DemocRatic goveRnanceanD inteRnational laW, supra note 3, at 91; Gregory H. Fox & Brad R. Roth, Democracy

in International LawA Reprise, in DemocRatic

goveRnance

anD

inteRnational

laW

, supranote 3, at 114. For a more comprehensive treatment, see bRaD R. Roth, goveRnmentalillegitimacyin inteRnational laW (1999)[hereinater Roth, goveRnmental illegitimacy].

31. Franck, Democratic Governance, supra note 30, at 47.32. Resolution I, Support to the Democratic Government o Haiti, O.A.S. Doc. OEA/Ser.

F/V.1/MRE/RES.1/91, corr.1, pmbl. (1991).33. Franck, Democratic Governance, supra note 30, at 47.


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has occurred in three phases. First came the normative entitlement to sel-determination. Then came the normative entitlement to ree expression as ahuman right. Now [in 1992] we see the emergence o a normative entitlementto a participatory electoral process.34 A ourth stage was reached in 1999,when the UN Commission on Human Rights promulgated a resolution list-ing rights o democratic governance, while simultaneously afrming thatdemocracy osters the ull realization o all human rights.35

Elsewhere, Franck has elaborated on the sources o the presumed rightto democratic governance in international law:

The evolution o a principled legal basis or the democratic entitlement, althoughaccelerating ater 1986, received its frst impetus in the United Nations Charter.Article 73, although dealing only with decolonization, requires member states

to develop sel-government, to take due account o the political aspirationso the peoples, and to assist them in the progressive development o their reepolitical institutions. Although the intent o this obligation was to inuencecolonial powers, not political societies in general, it did have an impact beyondthe colonies.36

Central to the ongoing debate is the autonomy o democracy, which somebelieve revolves around positive liberty (reedom to) rather than negativeliberty (reedom rom).37 As Franck writes, For some, sel-realization requiresmore than getting the government o their backs. For these, only a boostonto the benign back o governmentlocal, national, and transnationalcancreate opportunities to reach reedoms tantalizingly proered goals.38 Suchis the meaning o reedom. But what exactly does a right to democraticgovernance entail? The right to democracy, according to Franck,

is the right o people to be consulted and to participate in the process by whichpolitical values are reconciled and choices made. Some aspects o this right areencompassed in existing human rights instruments. Rights to ree speech, press,religion, and assembly are examples o associational and discursive entitlements

which are already ormulated in conventions. The right to electoral democracy

34. Id. at 90.35. The resolution, entitled Promotion o the Right o Democracy, was passed by a vote o

510 with two abstentions (China and Cuba). See Summary Record o the 57th Meeting,U.N. ESCOR, Commn. on Hum. Rts., 55th Sess., 12, U.N. Doc. E/CN.4/1999/SR.57 (1999). Note, however, that the title o the resolution, which does not recur in theresolution itsel, was deeply contested. It was put to a separate vote that drew twelvenays and thirteen abstentions, with several States expressing doubts as to democracyslegal status as a right. Gregory H. Fox & Brad R. Roth, Introduction: The Spread o

Liberal Democracy and Its Implications or International Law, inDemocRatic

goveRnance

anD inteRnational laW, supra note 3, at 3.36. thomas m. FRancK, the emPoWeReD selF: laW anD society in the age oF inDiviDualism 263

(1999)[hereinater FRancK, the emPoWeReD selF].37. SeeIsaiah Berlin, Two Concepts o Liberty, inPolitical thought 124 (Michael Rosen &

Jonathan Wol eds., 1999); isaiah beRlin, FouR essayson libeRty118 (1969).38. FRancK, the emPoWeReD selF,supra note 36, at 257.


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builds on these, but seeks to extend the ambit o protected rights to ensuremeaningul participation by the governed in the ormal political decisions bywhich the quality o their lives and societies are shaped. As with other rights,it is necessary to defne the entitlement, to establish instruments o compliance

verifcation, and to enorce the right against violations.39

Interestingly, in deending the right to democratic governance, whichcomprises subsidiary discursive rights and electoral rights, Franck invokesKants philosophy o international law, reminding us that

[n]either Kant nor his modern interpreters make the argument that democracieswill not fght: only that they are not disposed to fght each other. The historicalrecord bears this out. Consequently, one way to promote universal and perpetualnonaggressionprobably the best and, perhaps, the only wayis to make

democracy an entitlement o all peoples.40

The argument in avor o a right to democratic governance amounts to aradical shit in the ocus and concern o international law: rom how statesinteract in the international system to how states themselves are confgured.As Gregory Fox and Brad Roth wrote,

Prior to the events o 198991, democracy was a word rarely ound in thewritings o international lawyers. Most scholars, and certainly most States, ac-cepted the 1987 view o the American Law Institute that international law does

not generally address domestic constitutional issues, such as how a nationalgovernment is ormed.41

The 1990s, then, spelled a shit rom procedure to substance. I Francksright to democratic governance is realized at the individual level, the emer-gence o a democratic polity as the basic unit o the international systemis the natural corollary at the systemic level.42 In addition, as Anne-MarieSlaughter remarks, attributes other than democracy itsel, such as guaranteeso civil and political rights, are already provided or in international human

rights instruments.43

39. thomas m. FRancK, FaiRness in inteRnational laWanD institutions 8384 (1995)[hereinaterFRancK, FaiRnessin intl laW](emphasis added).

40. Thomas M. Franck, Democratic Governance, supra note 30, at 88. On the distinctionbetween discursive rights and electoral rights, see FRancK, FaiRnessin intllaW, supranote 39, at 98134. For other invocations o the democratic peace in international legalscholarship, see Anne-Marie Slaughter, Law among Liberal States: Liberal Internationalismand the Act o State Doctrine, 92 columbia l. Rev. 1907 (1992); Anne-Marie Slaughter,

International Law in a World o Liberal States, 6 euR

. J. int

l

l. 503 (1995); FernandoTesn, The Kantian Theory o International Law, 92 colum. l. Rev. 53 (1992).41. Fox & Roth, supra note 35, at 1.42. Anne-Marie Slaughter, Pushing the Limits o the Liberal Peace: Ethnic Confict and the

Ideal Polity, in inteRnational laW anD ethnic conFlict 128, 142 (David Wippman ed.,1998).

43. Id. at 142.


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b. Fre

Linked to the case or an emergent right to democratic governance is theargument in support o pro-democratic intervention. Michael Reisman wasthe originator o the notion. In a 1984 editorial in the American Journalo International Law, he called or a reinterpretation o Article 2(4) o theUnited Nations Charter, which prohibits the threat or use o orce againstthe territorial integrity or political independence o any state.44 Reismansargument, like the causal logic o the democratic peace, was immanentlyappealing:

There is neither need nor justifcation or treating in a mechanically equal ashionTanzanias intervention in Uganda to overthrow [Idi] Amins despotism, on the

one hand, and Soviet intervention in Hungary in 1956 or Czechoslovakia in1966 to overthrow popular governments and to impose an undesired regimeon a coerced population, on the other.45

The logic or a unifcation o law and morals in international practice, ac-cording to Reisman, was the ollowing:

Here as in all other areas o law, it is important to remember that norms areinstruments devised by human beings to precipitate desired social consequences.One should not seek point-or-point conormity to a rule without constant regard

or the policy or principle that animated its prescription, and with appropriateregard or the actual constellation in the minds o the draters.46

What role, then, or the use o orce? Reisman had this to say:

Coercion should not be glorifed, but it is nave and indeed subversive o publicorder to insist that it never be used, or coercion is a ubiquitous eature o allsocial lie and a characteristic and indispensable component o law. The criticalquestion in a decentralized system [like the international system] is not whethercoercion has been applied, but whether it has been applied in support o or

against community order and basic policies, and whether it was applied inways whose net consequences include increased congruence with communitygoals and minimum order.47

The denial o what came to be called pro-democratic intervention, saidReisman, is a rape o common sense.48 Over the course o the late twentiethcentury, he elaborated his case or pro-democratic intervention:

44. W. Michael Reisman, Coercion and Sel-Determination: Construing Charter Article 2(4),78 am. J. intl l. 642, 642 (1984).

45. Id. at 644.46. Id.47. Id. at 645.48. Id.


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One can no longer simply condemn externally motivated actions aimedat removing an unpopular government and permitting the consultation orimplementation o the popular will as per seviolations o sovereignty withoutinquiring whether and under what conditions that will was being suppressed,

and how the external action will aect the expression and implementation opopular sovereignty.49

Reisman ortifed his argument in the atermath o 11 September 2001,cautioning that

[T]he United Nations and all people committed to a public order o humandignity must keep in mind that this time they are not engaged in an elective oroptional conict. They are under mortal attack, and in a war o sel-deense,they must choose between only two possible exit strategies: either victory or

deeat.50

Do viable pathways to democracys victory exist? Here is the map thatReisman drew:

Democracys arsenal will have to develop new oensive and deensive weap-ons and new modes o warare that can destroy the enemys capacity withoutdestroying democracy itsel. The international law about using those weaponswill also have to be developed. The dierent circumstances o each newconict will require dierent adaptations, which, while aithul to the policies

and principles o international humanitarian law, will ensure their continuingrelevance in new contexts.51

While the aorementioned contributions to the philosophy o internationallaw-meaning the body o work concerned with the moral oundations ointernational laware o great signifcance or international society, im-

49. W. Michael Reisman, Sovereignty and Human Rights in Contemporary InternationalLaw, 84 am. J. intl l. 866, 876 (1990). For an application o the argument, see An-thony DAmato, The Invasion o Panama was a Lawul Response to Tyranny, 84 am. J.

intl l. 516 (1990); W. Michael Reisman, Haiti and the Validity o International Action,89 am. J. intl l. 82, 8284 (1995). For important contributions o recent origin, seeMichael Byers & Simon Chesterman, You, the People: Pro-democratic Intervention inInternational Law, inDemocRatic goveRnanceanD inteRnational laW, supra note 3, at 259;David Wippman, Pro-democratic Intervention by Invitation, in DemocRatic goveRnanceanD inteRnational laW, supra note 3, at 293; Brad D. Roth, The Illegality o Pro-demo-cratic Invasion Pacts, inDemocRatic goveRnanceanD inteRnational laW, supra note 3, at328. Leading works on ordinary intervention and international law include inteRventionin WoRlD Politics (Hedley Bull ed., 1984); chRistine gRay, inteRnational laW anD the useoF FoRce (2000); simon chesteRman, Just WaRoR Just Peace?: humanitaRian inteRventionanDinteRnational laW(2001); thomas FRancK, RecouRseto FoRce: state actionagainst thReatsanD

aRmeD

attacKs

(2002); DemocRatic

accountability

anD

the

use

oF

FoRce

in

inteRnational

laW

(Charlotte Ku & Harold Jacobson eds., 2003); humanitaRian inteRvention: ethical, legalanDPolitical Dilemmas (J. L. Holzgree & Robert O. Keohane eds., 2003); ethicsanD FoReigninteRvention(Deen K. Chatterjee & Don E. Scheid eds., 2003).

50. W. Michael Reisman, In Deense o World Public Order, 95 am. J. intl l. 833, 835(2001).

51. Id. at 833.


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portant pragmatic questions or international law and international politicsremain. These have come to the ore with particular orce in the atermatho 11 September 2001. The ollowing thereore turns rom the philosophicalsketches o Kant et al. to more pragmatic sketches o international law, andthe politics thereo.52 The emphasis is on the implications o pro-democraticintervention or international law and practice. Are reports o the death oArticle 2(4) still greatly exaggerated?53

IV. dEMocRATIc WAR

In recent years, citizens in advanced industrialized democracies, through

their representatives, have called down on themselves all the miseries owar, to invoke the language o Kant.54 They have themselves been askedto partake in the fghting or perpetual peace.55 In this pursuit, they havealso supplied the costs o the war rom their own resources, and soughtto painully make good the ensuing devastation.56 What is more, thesecitizens, as the crowning evil, have taken upon themselves a burdeno debt which has already embittered peace itsel and which can neverbe paid o on account o the constant threat o new wars.57 Examplesrange rom Grenada to Panama, and rom Kosovo to Iraq. The latter two,

as well as Aghanistan and East Timor, have been the site, at one point inthe course o pro-democratic intervention, o international territorial ad-ministration, as the international administration o war-torn territories hasbecome known.58

Enshrining democratic entitlements in international lawwith or withoutinternational territorial administrationhas paradoxical consequences orinternational security, or the promotion o democratic peace makes nec-essary the waging o democratic war. This part o the article is concernedwith the dark sides o virtue, the inevitable consequences o what somecall democratic legitimism.

52. On this topic more generally, see also the PoliticsoF inteRnational laW (Christian Reus-Smit ed., 2004).

53. For this amous fnding, see Louis Henkin, The Reports o the Death o Article 2(4) AreGreatly Exaggerated, 65 am. J. intl l., 544 (1971)[hereinater Henkin, Article 2(4)].

54. Kant, supra note 2, at 100.55. Id.56. Id.

57. Id.58. SeeRichaRD D. caPlan, a neW tRusteeshiP? the inteRnational aDministRationoF WaR-toRn teR-RitoRies (2002); simon chesteRman, you, the PeoPle: the uniteD nations, tRansitional aDministRa-tion, anD state-builDing(2004); Ralph Wilde, From Danzig to East Timor and Beyond: TheRole o International Territorial Administration, 95 am. J. intl l. 583 (2001); MatthiasRuert, The Administration o Kosovo and East-Timor by the International Community,50 intl & comP. l.Q. 613 (2001).


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Legitimism in any orm is inherently aggressive. Whether it be the dynastic legiti-mism o the Holy Alliance, the constitutional legitimism o the Tobar Doctrine, orthe ideological legitimisms o the Brezhnev and Reagan Doctrines, legitimismshistoric purpose has been to disparage the right o one state to resist impositions

by other states. Such disparagement is at odds with the most undamental tasko the United Nations system: the discouragement o interstate war.59

In the ollowing the analysis turns to the causal logic o democratic war.See Figure 3.

The causal logic o democratic war, theorized here or the frst time,is as straightorward as the causal logic o democratic peace. Once againdemocratic ideas orm the independent variable. These ideas produce ademocratic ideology and democratic institutions. The promotion and export

o these democratic products, in turn, serve as the cause and consequenceo pro-democratic intervention. The result o pro-democratic interventionis democratic war, internal and otherwise. The ollowing urther elucidatesthe logic o democratic war.

A. Prmting demray60

The promotion o democracy, genuine and otherwise, has been a corner-

stone o US oreign policy or much o the twentieth century. It has its rootsin the liberal internationalism o ormer US President Woodrow Wilson.61The promotion o democracy, despite initial reservations, has remained acornerstone o the US National Security Strategy under President GeorgeW. Bush: Embodying lessons rom our past and using the opportunity wehave today, the national security strategy o the United States must start romthese core belies and look outward or possibilities to expand liberty.62 Theexpansion o liberty in international society has become a mission civilisa-triceo the United States. For most o the twentieth century, successive USadministrations have sought, albeit in dierent ways and or dierent reasons,to make the world sae or democracy, as Wilson memorably put it. Thesubjects o democratic legitimismwhether they were subjects o liberalinternationalism or conservative internationalismhave been citizens romplaces as diverse as interwar Europe and the Philippines as well as Japanand Bosnia-Herzegovina.

59. Roth, goveRnmental illegitimacy, supra note 30, at 426.

60. For a contemporary perspective, see Larry Diamond, Promoting Democracy, 87 FoReign

Policy25 (1992).61. On Wilsons internationalism, see, most importantly, thomas J. KnocK, to enD all WaRs:

WooDRoW WilsonanDthe QuestFoRa neW WoRlD oRDeR (1992).62. The White House, The National Security Strategy o the United States 3 (17 Sept. 2002)

available athttp://www.whitehouse.gov/nsc/nss.pd [hereinater National Security Strategy2002].


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Let us turn to the underpinnings o democratic legitimism, or the lan-guage o liberty. The War o American Independence (17751783) in theUnited States, or example, helps to account or the beginnings o Americaninternationalism.

American understandings o the purpose o the Revolution quickly came ater

1776 to turn on religious liberty as the antithesis o tyranny, and on law as theguarantor and defnition o liberty; yet, paradoxically, the conict o denomina-tions steadily increased the authority o the group over the conscience o theindividual, and the reconstruction o American law led the courts o the newRepublic to develop a ar more interventionist and innovatory attitude to theirrole.63

The struggle or democracy let an indelible mark on the emerging bodypolitic. The American colonists opposition to what they saw as the Britishgovernments arbitrary and tyrannical assertions o power crystallized thepolitical wisdom and experience accumulated over nearly two centuries.64This attitude became a constitutive element o the American creed and, byextension, the civilizing mission o the most powerul democracy in worldhistory. From the outset, even the leaders o the American Revolution, in-cluding John Adams and Thomas Jeerson, talked grandly about breakingwith the European past and starting a new order o the world.65

63. J. c. D. claRK, the languageoF libeRty 16601832: Political DiscouRseanD social Dynamicsinthe anglo-ameRican WoRlD 382 (1994) (emphasis added).

64. RichaRD b. beRnsteinWith Kym s. Rice, aRe Weto bea nation?: the maKingoFthe constitution11 (1987).

65. noRman F. cantoR, imaginingthe laW: common laWanDthe FounDationsoFthe ameRican legalsystem 354 (1997).

Figure 3. The Causal Logic o Democratic War


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The frst US Governor o the Philippines, where the United States beganto crat the new order o the world and attempted to realize democraticentitlements repeatedly in the twentieth century, reected on this civilizingmission. Wrote William Howard Tat in 1902:

It is in my judgment the duty o the United States to continue government [inthe Philippines] which shall teach those people individual liberty, which shalllit them up to a point o civilization o which I believe they are capable, andwhich shall make them rise to call the name o the United States blessed. 66

Tats statement, more than one hundred years old, not only highlights thetransormation o American oreign policy ollowing the Spanish-AmericanWar o 1898, but the normative underpinnings o this transormation aswell.

The source o internationalism, apart rom strategic interests, wasChristian stewardship, as Tats paternalistic language makes clear.67 TheSpanish-American war was critical in the transition rom isolationism tointernationalism. As Wilson pointed out, in 1902, in the midst o US pro-democratic intervention in the Philippines,

No war ever transormed us quite as the war with Spain transormed us. Noprevious years ever ran with so swit a change as the years since 1898. Wehave witnessed a new revolution. We have seen the transormation o America

completed. . . . The battle o Trenton was not more signifcant than the battle oManila. The nation that was one hundred and twenty-fve years in the makinghas now stepped orth into the open arena o the world.68

Wilsons reections on the ideals o America oer important insights intothe early days o democracy promotion, and the sources upon which it drew.As Wilson noted, It was clear to us even then, in those frst days when wewere at the outset o our lie, with what spirit and mission we had comeinto the world.69 Wilsons admiration o the revolutionaries commitment

to democratic ideals knew no bounds:It was no abstract point o governmental theory the leaders o the colonies tookthe feld to expound. Washington, Henry, Adams, Hancock, Franklin, Morris,Boudinot, Livingston, Rutledge, Pinckney,these were man o aairs, whothought less o books than o principles o action. They ought or the plainright o sel-government, which any man could understand. The governmentover sea had broken aith with them,not the aith o law, but the aith that is

66. As quoted in tony smith, ameRicas mission: the uniteD statesanDthe WoRlDWiDe stRuggleFoR DemocRacyinthe tWentieth centuRy 37 (1994).

67. On the religious roots o democratic ideology, see alsoclaRK,supra note 63.68. Woodrow Wilson, The Ideals o America, 90 atlantic monthly (18571932) 721, 726

(1902).69. Id. at 723.


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in precedents and ancient understandings, though they be tacit and nowherespoken in any charter. Hitherto the colonies had been let live their own livesaccording to their own genius, and vote their own supplies to the crown as itheir assemblies were so many parliaments. Now, o a sudden, the Parliament

in England was to thrust their assemblies aside and itsel lay their taxes. Herewas too new a thing. Government without precedent was government withoutlicense or limit. It was government by innovation, not government by agreement.Old ways were the only ways acceptable to English eet. The revolutionistsstood or no revolution at all, but or the maintenance o accepted practices,or the inviolable understandings o precedent,in brie, or constitutionalgovernment.70

The oundations or American internationalism were laid:

It means that in our stroke or independence we struck a blow or all the world.Some men saw it then; all men see it now. The very generation o Englishmenwho stood against us in that day o our struggling birth lived to see the liberat-ing light o that day shine about their own path beore they made an end andwere gone. They had deep reason beore their own day was out to know whatit was that Burke had meant when he said, We cannot alsiy the pedigree othis ferce people, and persuade them that they are not sprung rom a nation inwhose veins the blood o reedom circulates.71

Ninety years later, on 15 December 1992, George Bush the elder rea-

frmed the US commitment to promoting democracy, at home and abroad,illustrating the similarities between liberal internationalism and conservativeinternationalism:

Historys lesson is clear. When a war-weary America withdrew rom the interna-tional stage ollowing World War I, the world spawned militarism, ascism, andaggression unchecked, plunging mankind into another devastating conict. Butin answering the call to lead ater World War II, we built rom the principles odemocracy and the rule o law a new community o ree nations, a communitywhose strength, perseverance, patience, and unity o purpose contained Soviettotalitarianism and kept the peace.72

Based on his assessment o international history, Bush drew the ollow-ing lessons or international practice:

No society, no continent should be disqualifed rom sharing the ideals o humanliberty. The community o democratic nations is more robust than ever, and itwill gain strength as it grows. . . . Abandonment o the worldwide democraticrevolution could be disastrous or American security. History is summoning usonce again to lead.73

70. Id. at 724.71. Id. at 723.72. As quoted in smith,supra note 66, at 311.73. Id. at 312.


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In conclusion,

[T]he values, stereotypes and aspirations o what the nineteenth century under-stood as the Puritan legacy were built into the minds o the rapidly multiplying

citizens o the new Republic. . . . Gradually, Americans understandings o theessence o their Great Experiment were modifed. The separation o Churchand State soon entailed that the new Republics sense o its crusading missionto reorm the old world was summed up not in Deism or Arianism but in theinclusive and seemingly secular term democracy. Democracy was now heldto be the essence o the American experiment; other states were divided intodemocracies and the objects o reorm.74

Such then are the ideological oundations o pro-democratic interven-tionthe case or which has been argued most ervently by international

lawyers in the United States, and which has consumed US Presidents, re-luctantly and otherwise, ever since 1898, the year o Spains deeat in theSpanish-American war over Cuba. This chapter in US history sheds light onthe path dependence o democratic ideology.75

b. Exprting demray76

In the 1990s, the export o democratic institutions moved to the oreront ointernational solutions to problems o international peace and security.77 AsUN Secretary-General Kof Annan noted in his 1998 report, The Causes oConfict and the Promotion o Durable Peace and Sustainable Developmentin Arica, in the absence o genuinely democratic institutions contendinginterests are likely to seek to settle their dierences through conict ratherthan through accommodation.78 Democracy, according to the Secretary-

74. claRK, supra note 63, at 383 (emphasis added).

75. On the causal role o ideas in the international system, see Albert S. Yee, The CausalEects o Ideas on Policies, 50 intl oRg. 69 (1996). See alsothe Political PoWeR oFeconomic iDeas: Keynesianism acRoss nations (Peter A. Hall ed., 1989); iDeas anD FoReignPolicy: belieFs, institutions, anD Political change (Judith Goldstein & Robert O. Keohaneeds., 1993); the cultuReoF national secuRity: noRmsanD iDentity in WoRlD Politics (PeterJ. Katzenstein ed., 1996).

76. Pars pro toto, see alsoJoshua muRavchiK, exPoRting DemocRacy: FulFilling ameRicas Destiny(1991). The studys title points to the mutually constitutive relationship between demo-cratic ideology and democratic institutions.

77. boutRos boutRos-ghali, an agenDa FoR Peace (2d ed. 1995); boutRos boutRos-ghali, anagenDaFoR DemocRatization (1996).

78. The Causes o Confict and the Promotion o Durable Peace and Sustainable Developmentin Arica, Report o the Secretary-General, U.N. GAOR, 52nd Sess., Agenda Item 10, 77, U.N. Doc. A/52/871-S/1998/318 (1998)[hereinater Secretary-Generals Report onArica]. In its 81st plenary meeting, the General Assembly responded with a resolution,requesting the President o the General Assembly to establish an open-ended ad hocworking group to oversee the implementation o the recommendations contained in thereport o the Secretary-General. The Causes o Confict and the Promotion o Durable


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General, is constitutive o society and therewith o international peace andsecurity: democratization gives people a stake in society. Its importancecannot be overstated, or unless people eel that they have a true stake insociety lasting peace will not be possible.79 How exactly does the demo-cratic entitlement create stakes in society?80

According to Franck, the democratic entitlement in international lawis requiring democratization to validate governance.81 Others, like Roth,disagree. For the latter, none o the reasons oered by proponents o demo-cratic entitlements in international law justiy

invoking a controverted interpretation o the right to political participation tochallenge a governments legal standing in the international system, therebyto rationalize otherwise impermissible implementation measures. To do so is

to declare what amounts to a liberal-democratic jihad. The paradoxical resultwould be to oist liberal-democratic values on populaces that do not sharethem, notwithstanding that the sel-determination o peoples is itsel a liberal-democratic value.82

Evidence or the oisting o liberal-democratic values on populaces that donot share them abound in the international system. Take the case o thePhilippines, mentioned above and arguably the frst US pro-democraticintervention under international law.

Tat, the later US president who, between 1901 and 1904, served as thefrst US governor o the island, had doubts about US entanglements in thePhilippines. For as he concluded, the local population needed the trainingo fty or a hundred years beore they shall ever realize what Anglo-Saxonliberty is. This assessment is reminiscent o General MacArthurs testimonybeore the US Congress, shortly ater his dismissal by President Truman,in which he compared the Japanese unavorably with the United States:Measured by the standards o modern civilization, testifed MacArthur in1951, the Japanese would be like a boy o twelve as compared with our

development o 45 years.83

Peace and Sustainable Development in Arica, adopted16 Dec. 1998, G.A. Res. 53/92,U.N. GAOR, 53rd Sess., Agenda Item 164, 15, U.N. Doc. A/RES/53/92 (1998). Onthe implementation o the recommendations, see, most recently, Implementation o theRecommendations Contained in the Report o the Secretary-General on the Causes oConfict and the Promotion o Durable Peace and Sustainable Development in Arica,Report o the Secretary-General, U.N. GAOR, 58th Sess., Agenda Item 40(b), U.N. Doc.A/58/352 (2003).

79. Secretary-Generals Report on Arica, supra note 78, 78. On the track-record o the

United Nations in underwriting democratization, seechesteRman, you, the PeoPle

, supranote 58.80. On the unction o stakes, with particular reerence to the creation o states in interna-

tional law, see Jens Meierhenrich, Forming States ater Failure, inWhen states Fail: causesanD conseQuences153 (Robert I. Rotberg ed., 2004).

81. FRancK, FaiRnessin intl laW,supra note 39, at 85.82. Roth, goveRnmental illegitimacy, supra note 30, at 424.83. John W. DoWeR, embRacing DeFeat: JaPaninthe WaKeoF WoRlD WaR ii 550 (1999).


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During most US administrations, and notably during the US administra-tion o Bush the Younger, the expansion o liberty in the international systemhas been about the export o American democratic institutions, rather thanthe export o democratic institutions per se. Wilson described the contribu-tion o the ounding athers:

The debt is the more incalculable which we owe to the little band o saga-cious men who labored the summer through, in that ar year 1787, to give usa constitution that those heady little commonwealths could be persuaded toaccept, and which should yet be a ramework within which the real powers oa nation might grow in the ullness o time, and gather head with the growtho a mighty people.84

Or as the 2002 National Security Strategy stated,

Americas constitution has served us well. Many other nations, with dierenthistories and cultures, acing dierent circumstances, have successully incor-porated these core principles into their own systems o governance. Historyhas not been kind to those nations which ignored or outed the rights andaspirations o their people.85

This statement, and others like it, cuts to the heart o pro-democratic inter-vention, and its unintended consequences in the contemporary internationalsystem.

Consider in this context the possibility that examples o democratic warmay have been driven, and will be driven, by considerations other than thepromotion o democratic ideology and the export o democratic institutions.Instead o seeing extant cases o pro-democratic intervention,

Grenada could equally be explained as one o the last Cold-War battlefelds,Panama as an embarrassed George Bush [the Elder] dealing with a US allyturned drug smuggler, and Haiti as a reugee crisis remarkable only as the frsttime the United States has sought Security Council authorization to intervene

in the Western Hemisphere. To hold these three instances up as models o anew era o seless intervention is to ignore the history o invasions that hascharacterized the relationship between the US and its southern neighbors. Touse them as the oundation o a new international legal order is to drape thearbitrary exercise o power by the sole remaining superpower in the robes odubious legality.86

84. Wilson, The Ideals o America, supra note 68, at 72223.85. National Security Strategy 2002, supra note 62, at 3.86. Byers & Chesterman, You, the People, supra note 49, at 292. For empirical analyses,

see smith, supra note 66; William i. Robinson, PRomoting PolyaRchy: globalization, us in-teRvention, anD hegemony (1996); the inteRnational DimensionsoF DemocRatization: euRoPeanDthe ameRicas (Laurence Whitehead ed., 2001); gRay, supra note 49; nicholas J. WheeleR,saving stRangeRs: humanitaRian inteRventionin inteRnational society (2000).


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Likewise many critics have likened the recent US intervention in Iraq tograve violations o international law, and deemed the international territorialadministration a threat to international peace and security.

In response to attempts, then and now, at a reinterpretation o Article 2(4),the Coru Channelcase also remains instructive. In considering justifcationsor the use o armed orce by the United Kingdom, the International Courto Justice (ICJ) came to the deense o Article 2(4) o the UN Charter. TheICJ, in no uncertain terms, rejected the governments line o deense:

The Court can only regard the alleged right o intervention as the maniestation oa policy o orce, such as has, in the past, given rise to most serious abuses andsuch as cannot, whatever be the present deects in international organization,fnd a place in international law. Intervention is perhaps still less admissible in

the particular orm it would take here ; or, rom the nature o things, it wouldbe reserved or the most powerul States, and might easily lead to pervertingthe administration o international justice itsel.87

More than orty years later, the ICJ, in the Nicaragua case, similarlyreused to contemplate the creation o a new rule opening up a right ointervention by one State against another on the ground that the latter hasopted or some particular ideology or political system.88 Other internationallawyers share these concerns, but distinguish between unilateral and col-

lective intervention in the pursuit o democratic governance. Louis Henkinremarked, in the context o NATOs controversial Kosovo intervention,unilateral intervention, even or what the intervening state deems to beimportant humanitarian ends, is and should remain unlawul.89 The NATO

87. Coru Channel, 1949 I.C.J. 35 (9 Apr) (emphasis added). Consider in this vein also theriposte by Louis Henkin to Thomas Francks obituary on Art. 2(4):

Dr. Thomas Franck, pathologist or the ills o the international body politic, has pronounced thedeath o the heart o the United Nations Charter, and proceeded to tell us who killed it. In my

view, the death certifcate is premature and the indictment or legicide must be redrawn to chargelesser though aggravated degrees o assault. Article 2(4) lives and, while its conditions is graveindeed, its maladies are not necessarily terminal. There is yet time to prescribe, transplant, salvage,to keep alive at all cost the principal norm o international law in our time.

Henkin, Article 2(4), supra note 53, at 544. For Francks argument, see Thomas Franck,Who Killed Article 2(4)? or: Changing Norms Governing the Use o Force by States, 64am. J. intl l. 809 (1970).

The prohibition against the use o orce in relations between states has been eroded beyondrecognition, principally by three actors: 1, the rise o wars o national liberation; 2, the risingthreat o wars o total destruction; 3, the increasing authoritarianism o regional systems dominatedby a super-Power. These three actors may, however, be traced back to a single circumstance: thelack o congruence between the international legal norm o Article 2(4) and the perceived national

interest o states, especially the super-Powers.

Id. at 835.88. Nicaragua, 1986 I.C.J. 133 (27 June).89. Louis Henkin, Kosovo and the Law o Humanitarian Intervention,93 am. J. intl l.

824 (1999). For a similar perspective, see also aDam RobeRts, humanitaRian action inWaR: aiD, PRotection anD imPaRtiality in a Policy vacuum (1996); Adam Roberts, NATOs


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intervention, which ormed the basis or a edgling international territorialadministration, speaks to a undamental challenge in international lawtheresolution o conicting imperatives.

Taking stock o the Kosovo intervention, Adam Roberts remarked that

[t]he reluctance o NATO governments to risk the lives o their orces, the di-fculty in developing a credible threat o land operations and, above all, thenarrowness o the line between success and ailure, suggest that the manylessons to be drawn rom these events should be on a more modest scale thanany grand general doctrines o humanitarian intervention.90

It is possible to take the argument urther. Even the willingness to risk liveso military orces, or the ability o developing a credible threat o landoperations, are insufcient to establish a doctrine o pro-democratic inter-vention. These pragmatic considerations ignore other dangers related to theinternational dimensions o democratization.

c. Ways War

Pro-democratic intervention causes war in two ways: (1) by waging warand (2) by provoking war.

Waging War. The promotion o democratic ideology and the export odemocratic institutions may require the international use o orce in order toweaken, or overthrow, an authoritarian or totalitarian regime. The creationor maintenance o democracy by fat has traditionally led to internationalwar.91 Yet as the case o contemporary Iraq attests, the waging o interna-tional war is insufcient or making democracy work. While the worldwould probably be more peaceul i all states were mature democracies,the conventional wisdom o both US Presidents Bill Clinton and GeorgeW. Bushthe ormer a proponent o liberal internationalism, the latter an

advocate o conservative internationalismailed to anticipate the dangerso getting rom here [authoritarianism] to there [democracy].92

Humanitarian War over Kosovo, 41 suRvival 102 (1999); Adam Roberts, The Road toHell: A Critique o Humanitarian Intervention, 16 haRvaRD intl Rev. 10 (1993); AdamRoberts, Humanitarian War: Military Intervention and Human Rights, 69 intl aFF. 429(July 1993).

90. Roberts, NATOs Humanitarian War, over Kosovo, supra note 89, at 120.

91. In an aside, the increasing willingness o members o the international community towage democratic war alsifes the monadic proposition o democratic peace theory,mentioned above, which holds that democracies are less war-prone than non-democra-cies regardless o the context. It should be noted that the monadic variant o democraticpeace theory has ar ewer proponents than the dyadic variant.

92. Edward D. Mansfeld & Jack Snyder, Democratic Transitions, Institutional Strength, andWar, 56 intl oRg. 297 (2002).


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The most immediate danger, rom the perspective o an interveningstate, relates to the loss o soldiers. Incidentally, the Clinton administrationwas more prudent than the Bush II administration when it came to protect-ing the lives o US soldiers in the pursuit o democratic war. In the case othe ormer Yugoslavia, or instance, pro-democratic intervention during theClinton administration was a hal-hearted aair. Two episodes stand out: (1)the US reusal to commit troops prior to the arrival o IFOR troops (NATOsImplementation Force o the Dayton Agreement) on 16 December 1995;and (2) the US reusal to contribute to international justice. As or the frstepisode, the United States, to the rustration o its NATO allies,

reused to send troops into Bosnia. Colin Powell, chairman o the Joint Chies oSta under Bush and then Clinton, later wrote: No American President could

deend to the American people the heavy sacrifce o lives it would cost to re-solve this baing conict. In 1993, Clintons choice o a lit-and-strike policyhad the advantage o not embroiling American soldiers in ground combat.93

The administration was also extremely reluctant to get involved in thepursuit o international justicein the eyes o many an important ingrediento democracy in international law. Explaining the United States unwilling-ness to detain individuals indicted by the International Criminal Tribunalor the Former Yugoslavia in The Hague or crimes against international law

committed in the ormer Yugoslavia, Gary Bass points to the imperative toprotect US soldiers:

Most o the crucial decisions about what American soldiers could do to arrestBosnias war criminal were made beore the delegations arrived [at the peaceconerence] in Dayton. The White House and the Pentagon were reluctant tomake arrests, animated by a sense o how unpopular a vigorous Bosnia missionwould be among most Americans.94

In the case o the war in Iraqregarded as democratic by some and

despotic by othersthe United States suered an unexpected number ocasualties in 2003 and 2004. I the intervention in Kosovo was a virtualwar, the intervention in Iraq was a literal war. Notwithstanding an im-pressive arsenal o technological advances, the US-led campaign involvedtraditional warare and inicted traditional losses on all sides, includinginordinate amounts o collateral damage.

Apart rom human losses, casualties in international war generate ad-ditional losses or the intervening state. Human losses oten translate intopolitical losses. Political losses can be transitory or permanent phenomena.

93. gaRy Jonathan bass, staythe hanDoF vengeance: the PoliticsoF WaR cRimes tRibunals 224(2000).

94. Id. at 239.


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They are largely driven by public opinion.95 They range rom protest toresistanceat home and abroad. The case o contemporary Iraq, like thecase o Vietnam, sheds light on this dynamic. The case raises the issue odomestic audience costs in intervening states, and the concomitant impera-tive o political survival.

Provoking War. Waging democratic war may heighten the necessityo urther democratic war. Several scenarios are logically conceivable andempirically verifable. First, democracy-resisting orces may launch internalwar against the intervening orces.96 This is so because in the barren andunpromising political landscape in which democratization typically unolds,threatened elites [what this article has termed democracy-resisting orces]are likely to have little confdence that a ully democratic regime could reli-

ably guarantee to protect their interests ater they surrender power.97

In thisscenario, democracy-demanding and democracy-imposing orces are likelyto retaliate by extending an ongoing democratic war, whether rom withinor rom without. The existence o divergent expectations about democracysunction may, in this scenario, spawn perpetual warnot perpetual peace.

Critics o pro-democratic intervention

have pointed out that newly democratizing states are oten neither liberal norpeaceul. Since the French Revolution, the earliest phases o democratizationhave triggered some o the worlds bloodiest nationalist struggles. Similarly,during the 1990s, intense armed violence broke out in a number o regionsthat had just begun to experiment with electoral democracy [i.e., democraticinstitutions] and more pluralist discourse [i.e., democratic ideology]. In somecases, such as the ormer Yugoslavia, the Caucasus, and Indonesia, transitionsrom dictatorship to more pluralistic public political systems coincided with therise o national independence movements, spurring separatist warare that otenspilled across international borders.98

In Arica, the Arusha Accords, an internationally sponsored attempt at

making democracy work in Rwanda, not only ailed to establish sustain-able democratic institutions and democratic ideology, but paved the road togenocide. Reminiscent o the violence-negotiation nexus during the talks

95. Douglas c. Foyle, countingthe Public in: PResiDents, Public oPinion, anD FoReign Policy (1999);Bruce Bueno de Mesquite & Randolph M. Siverson, War and the Survival o PoliticalLeaders: A Comparative Study o Regime Types and Political Accountability, instRategicPoliticians, institutions, anD FoReign Policy255 (Randolph M. Siverson ed., 1998). See alsomiRoslav nincic, DemocRacyanD FoReign Policy: the FallacyoF Political Realism(1992).

96. On internal war generally, see, or example, inteRnal WaR: PRoblemsanD aPPRoaches(Harry

Eckstein ed., 1964); Russell

haRDin

, one

FoR

all

: the

logic

oF

gRouP

conFlict

(1995);Steven R. David, Internal War: Causes and Cures, 49 WoRlD Politics552 (1997); StathisN. Kalyvas, New and Old Civil Wars: A Valid Distinction?, 54 WoRlD Politics99(2001); Stathis N. Kalyvas, The Ontology o Political Violence: Action and Identity inCivil Wars, 1 PeRsPectiveson Politics 475 (2003).

97. JacK snyDeR, FRom votingto violence: DemocRatizationanD nationalist conFlict37 (2000).98. Mansfeld & Snyder, Democratic Transitions, supra note 92, at 297.


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between the apartheid government and the Arican National Congress atthe Convention or a Democratic South Arica (CODESA), violence becamea beyond-the-table tool during the Arusha negotiations. On 30 October1992, the Arusha talks produced agreement on a Broad-Based TransitionalGovernment (BBTG) and a Transitional National Assembly (TNA), held to-gether by a parliamentary constitutional ramework.99 Within days o signingthe protocol on the composition o the TNA, the Coalition pour la Densede la Rpublique (CDR) and Mouvement Rvolutionnaire National pourle Dveloppement(MRND) rejected the agreement and organized demon-strations against the proposed peace in Gisenyi and Ruhengeri prectures,destabilizing the entire Northwest o Rwanda.100

This civil violence in turn led to a renewal o the civil war: on 8 Febru-

ary 1993 the RPF launched a major oensive, claiming it was occasioned bythe recent massacres.101 The successul military oensive, which violatedthe Nseleceasefre o July 1992, was motivated by more than the recentmassacres. It was designed to highlight the military superiority o the Rwan-dan Patriotic Army (RPA)and consolidate the dramatic shit in the balanceo power between the government and the Rwandan Patriotic Front (RPF).The oensive certainly did confrm their strength: within some weeks ofghting the RPF had doubled the amount o territory under its control.102Yet the oensive had unintended consequences. It urther exacerbated group

polarization inside Rwanda.Responding to the oensive on national radio and beore military com-

manders, President Habyarimana encouraged the ormation o sel-deenseunits armed with traditional weapons.103 Ater a temporary suspension othe peace talks, President Habyarimana signed the fnal agreement o theArusha accords on 4 August 1993.104 In conjunction, the

99. Protocol o Agreement on Power-Sharing within the Framework o a Broad-BasedTransitional Government between the Government o the Republic o Rwanda and the

Rwandese Patriotic Front (30 Oct. 1992), inWilliam a. schabas & maRtin imbleau, intRo-Duction to RWanDan laW259 (1997). For seminal contributions to the debate over thepossibilitiesand limitso constitutional design, see Alred Stepan & Cindy Skach,Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versusPresidentialism, 46 WoRlD Politics1 (1993); Bruce Ackerman, The New Separation oPowers, 113 haRv. l. Rev. 633 (2000).

100. gRaRD PRunieR, the RWanDan cRisis: histoRyoFa genociDe 173 (1995); bRuce D. Jones, Peace-maKingin RWanDa: the DynamicsoF FailuRe 82 (2001). Incidentally, the ounder o the CDR,Jean Shyirambere Barahinyura, had published a violently muckracking [sic] pamphletagainst Habyarimana in 1988, oreshadowing things to come. Id. at 128. The anecdoteunderscores the immense audience costs that Habyarimana and his Arusha delegation

aced at home.101. Jones, supra note 100, at 82. The killings in Gisenyi and Ruhengeri precturesclaimedthe lives o an estimated 300 Tutsi.

102. Id. at 83.103. alison Des FoRges, leave none to tell the stoRy: genociDein RWanDa 110 (1999).104. The fnal agreement included the protocol on the integration o armed orces, one o

the most serious commitment problems. SeeProtocol o Agreement Between the Government


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accords contained elaborate provisions or power sharing in government; integra-tion o the two armies; a detailed plan or the return o some soldiers to civilianlie; procedures or democratization o Rwandan politics; and the establishmento a coalition transition government, the Broad Based Transitional Government

(BBTG). The accords culminated ourteen months o negotiations and mediationby the Tanzanian government, in conjunction with the Organization o AricanUnity and the governments o France, Belgium, and the United States. TheUnited Nations had agreed to oversee the accords implementation.105

Together with the Constitution o 1991 and two post-genocide agreements,the Arusha accords served as the constitutional law o Rwanda until theadoption o a new constitution by parliament and in a reerendum on 23April and 26 May 2003, respectively.106

Yet implementation o the accords was slow in 1993, and United Na-tions assistance not orthcoming. This undermined the tentative peace. InRwanda, the government and the RPF would demobilize only i UN orces

o Rwanda and the Rwandese Patriotic Front on the Integration o the Armed Forceso the Two Parties(3 Aug. 1993) available athttp://www.incore.ulst.ac.uk/services/cds/agreements/pd/rwan1.pd. Commitment problems reer to situations in which mutuallypreerable bargains are unattainable because actors hold conicting preerences over asubstantive bargaining issue. For this defnition o commitment problems, see James D.Fearon, Rationalist Explanations or War, 49 intl oRg. 379, 381 (1995). SeealsoJamesFearon, Commitment Problems and the Spread o Ethnic Confict, inthe inteRnationalsPReaD oF ethnic conFlict: FeaR, DiFFusion, anD escalation107 (David A. Lake & DonaldRothchild eds., 1998); James Fearon, Ethnic War as a Commitment Problem, ArticleManuscript, University o Chicago (June 1993). For oundational work on commitmentproblems, see Oliver E. Williamson, Credible Commitments: Using Hostages to SupportExchange, 73 am. econ. Rev. 519 (1983); oliveR e. Williamson, the economic institutionsoF caPitalism: FiRms, maRKets, Relational contRacting, chs. 7, 8 (2d ed. 1987).

The government and RPF disagreed on two points, the percentage o ofcers each side wouldcontribute to the new army, and how ar down the military chain o command each side would beallowed to contribute ofcers. In the end, the military integration agreement called or a fty-ftydivision o the ofcer corps down to the level o feld commander, but allowed the government

to retain a 60 percent share o the troops,with the proviso that hierarchically consecutive positions in a given unit would besplit. baRbaRa F. WalteR, committingto Peace: the successFul ResolutionoF civil WaRs 152(2002). A protocol on another, less intractable commitment problemthe repatriationo reugeeshad been signed on 9 June 1993. See Protocol o Agreement Betweenthe Government o Rwanda and the Rwandese Patriotic Front on the Repatriation oRwandese Reugees and the Resettlement o Displaced Persons(9 June 1993) reprintedin 13 ReFugee suRv. Q. 188 (1994).

105. Stephen John Stedman, Spoiler Problems in Peace Processes, 22 intl sec. 5, 21(1997).

106. For the complete text o the interim constitution (in the French original), see Loi Fon-

damentale, reprinted invol

. i coDes

et

lois

Du

RWanDa

5 (2d ed. Filip Reyntjens & JanGorus eds., 1995). For a discussion, see Aloys Muberanziza, Quelques rfexions surla loi ondamentale actuelle la veille de la mise en place dune nouvelle constitutionau Rwanda, 5 Revue scientiFiQueDu DRoit1 (2000); Filip Reyntjens, Constitution-Makingin Situations o Extreme Crisis: The Case o Rwanda and Burundi, 40 J. aFRican l. 234(1996). On the fnal constitution, see The Fear o Majority Rule, economist, 31 May2003.


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arrived on the ground and proved capable o ulflling their declared mis-sion.107 Although deliberate, inclusive, communicative, inormed by acogent analysis, and supported by a range o internal and external parties,many o whom cooperated beyond what might have been expected, thepeace negotiations in Tanzania served as a catalyst o genocide.108

The Arusha Agreement was signed stillborn, mainly because it ailed to takeaccount o the extremist CDR, either by including it or by containing it. Instead,the peace agreement wholly excluded the CDR, even rom the transitional govern-ment. Strong in both the government and the army the extremists aced a doubleloss: o the government to the opposition and o the army to the RPF.109

Christopher Clapham, an expert on Arica, reects on the predicament othe CDR and the extremist actions in the other political parties:

The Hutu power actions which controlled the existing Rwandan governmenteectively excluded themselves rom the negotiations, rom which they hadnothing to gain. As the settlement eventually emerged, indeed, they had every-thing to lose. Not only were they reduced to less than a quarter o the seats ina government over which they had hitherto exercised unchallenged control; theArusha accords also sought to separate the judiciary rom the executive, andgave the courts the power to bring to book individuals in high positions whohad misused their inuence or state resources.110

The CDR were spoilers, defned as leaders and parties who believethat peace emerging rom negotiations threatens their power, worldview,and interests, and use violence to undermine attempts to achieve it.111 Thegenocide represented the continuation o politics by other means. Rwandanauthorities distributed large numbers o frearms to militia members and othersupporters months beore the genocide began, and again ater most oreignerslet Rwanda at the beginning o the carnage.112 The Arusha Accords, whichdid not result in pro-democratic intervention, nevertheless rank as a tragicailure in the promotion o democratic ideology and the export o democraticinstitutions by the international community. In the end, the casualties oailed peace were infnitely higher than the casualties o war.113

107. baRbaRa F. WalteR, committingto Peace: the successFul ResolutionoF civil WaRs154 (2002)(emphasis added).

108. Jones, supra note 100, at 69.109. mahmooD mamDani, When victims become KilleRs: colonialism, nativism, anDthe genociDe in

RWanDa 211 (2001). Mamdani situates the genocide frmly in the consequences o civilwar and deeat, emphasizing the contingent nature o the atrocities. Id. at 217.

110. Christopher Clapham, Rwanda: The Perils o Peacemaking, 35 J. Peace Res. 193, 203(1998).

111. Stedman, supra note 105, at 5. More generally, see the inteRnational DimensionsoF inteRnalconFlict(Michael E. Brown ed., 1996); inteRnational laWanD ethnic conFlict, supra note42.

112. Stephen D. Goose & Frank Smyth, Arming Genocide in Rwanda, 73 FoR. aFF. 86, 90(1994).

113. Stedman, supra note 105, at 5.


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The new millennium saw urther evidence o the dangers o democratiza-tion. The pro-democratic intervention in Aghanistan, ollowing the attacks o11 September 2001, has spurred insurgent warare not only in that country,but in neighboring Pakistan as well. Thus, none o the mechanisms thatproduce the democratic peace among mature democracies operate in thesame ashion in newly democratizing states. Indeed, most o them work inreverse.114 As Jack Snyder and Karen Ballentine have ound,

[t]he marketplace o ideas in newly democratizing states oten mirrors that o ayoung, poorly regulated industry, where barriers to entry are alling, competi-tion is imperect, and oligopolistic elites exploit partial media monopolies inintense competition to win mass support in a segmented market. This kind oimperectly competitive market may yield the worst o both worlds: elites are

driven to compete or the mobilization o mass support, but by targeting nichemarkets, they can avoid debating in a common orum where ideas are publiclyheld up to rigorous scrutiny by competitors and expert evaluators.115

This fnding undermines the logic o democratic peace. The link betweendemocratic institutions and ree debate, as depicted in Figure 2 above, isrequently underdeveloped or unavailable in newly democratizing coun-tries. Roth concurs, also questioning the imputed pacifc consequences odemocracy or international security:

There is little reason to believe that participatory mechanisms complying with agiven international standard [like the right to democrati

perpetual war a pragmatic sketch human rights quarterly

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