Restoring Democracy through International Law

25th AUWCL Sponsored Grotius Lecture to Mark Start of ASIL Annual Meeting

On March 29, 2023, the 25th Grotius Lecture, sponsored by the American University Washington College of Law, marked the opening of the 117th Annual Meeting of the American Society of International Law. 

Following an introduction by ASIL President Gregory Shaffer, AUWCL Dean Roger A. Fairfax Jr. welcomed the audience and explained that over the course of the past twenty-five years, this lecture has been one of the primary public forums to promote international law.

He presented the Grotius Lecturer, Professor Kim Lane Scheppele, an American scholar of law and politics who serves as the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and in the University Center for Human Values at Princeton University. He also introduced the Distinguished Discussant, Manuel José Cepeda Espinosa, a member of the High Level Panel of Legal Experts on Media Freedom and former Chief Justice of the Constitutional Court of Colombia.

In her lecture, Prof. Scheppele discussed the relationship between democracy and international law. She observed that in the early 1990s, the optimism created by the fall of the Berlin wall and the democratic transitions away from military dictatorships in Latin America nurtured the impression that the world was moving towards an environment of democracies based on the rule of law, the recognition of fundamental human rights, and universal freedoms. She highlighted the example of Hungary, where the transition from a communist regime to a democracy encountered the challenge that no legislation existed that was up to the standards required in a democratic regime. The decisionmakers frequently applied directly the rules of international human rights, giving direct effect to international law. Also Hans Kelsen’s ideas about a constitutional court were incorporated directly into the Hungarian legal order. The Hungarian Constitutional Court equally applied directly the rules of international law. In Latin America, the climax of the recognition of democracy as a fundamental right was the 2001 Interamerican Democratic Charter.

However, the early part of the current century has seen a backsliding in terms of democracy and rule of law. Autocratic rulers were able to use the new, democratic institutions in Latin America and in Eastern Europe to gain access to power. Once in power, they progressively amended the legal systems to their favor and making it hard or impossible to be removed from their positions. While this new generation of autocrats do not directly commit widespread human rights violations – with obvious exceptions – they are able to change the legal systems to such an extent that democracy becomes nothing more than lip service. Under these regimes, all institutions are tightly controlled by the President and the laws adopted pursue the continued support of the ruling elite. Even some of the modern tools developed to safeguard against these autocratic tendencies, such as election monitoring, have proven ineffective.

According to Scheppele, however, international law is catching up with these developments and is articulating legal tools to fight these new authoritarian developments. She particularly highlighted the contribution of international law to recognize and protect the independence of the judiciary and other constitutionally protected agencies, such as central banks, election authorities, and others. The jurisprudence of the Inter-American and European Human Rights subsystems is particularly relevant in this development. Most recently, also the European Court of Justice has taken up on the matter of judicial independence, holding Hungary liable for breaching EU law by interfering with the correct functioning of its Constitutional Court and judicial power.

Another important advancement by international human rights mechanisms is the recognition that unlimited presidential terms, beyond the term limits explicitly stated in the Constitution, infringes upon the fundamental right to political participation of everybody else. The Inter-American Court of Human Rights’ famous Advisory Opinion No. OC-28/21, of 7 June 2021, which was formulated upon the case of Fabio Gadea v. Nicaragua equally pending before the Inter-American Human Rights System, was a milestone in the recognition of the relationship between autocratic abuse of the judicial and constitutional system and the infringement of the population’s human rights to equal political participation. Another area of concern where the European Court of Human Rights has contributed is election administration, for which the Court has established clear criteria to allow for a truly independent administration of the electoral processes. In all these cases, international law has been a basis for reaffirming the principles of legality, equality, and due process.

According to Scheppele, the power of these recent precedents may help lay the groundwork for the upcoming situations of democratic transitions from the regimes that currently have become autocratic. For example, in Hungary a group of constitutional legal scholars prepared a roadmap to follow international legal principles, mainly derived from human rights practice, to re-establish democratic governance to the country. In the last elections they missed by a small margin, but this initiative has spurred some hope for the future.

In his remarks as Distinguished Discussant, Manuel José Cepeda Espinosa added to Scheppele’s analysis by highlighting the particular contribution of the Inter-American Court of Human Rights to the fight against tyranny in Latin America. He focused on the contribution in three areas. First, the rejection of the military governments by, for instance, strictly prohibiting the amnesty laws to benefit members of these military governments. Second, he commented upon the Court’s clear support of media freedom as a means to attain a genuinely democratic discussion and freedom of speech, including the rejection of the leyes de desacato (contempt laws). Third, the Court’s explicit recognition and protection of the independence of the judiciary in a wide array of situations, including the illegal removal of judges from the Supreme and Constitutional courts of some countries in Latin America. In his capacity as member of the High Legal Panel on Freedom of the Press, Manuel José Cepeda himself had been involved in a number of initiatives to protect freedom of speech in the Hemisphere.

He concluded his remarks by discussing the “Constitutional Bloc” theory present in many Latin American states, according to which international human rights treaties are ranked equal to the text of the Constitution and have to be enforced as prevalent rules and with direct effect. He also pointed out that even in those states that do not recognize the Constitutional Bloc doctrine, the American Convention on Human Rights is applied directly in the domestic legal systems, creating very specific and direct obligations for public authorities.

For the full Grotius Lecture, please watch here.