HUMAN RIGHTS QUARTERLY

Perpetual War: A Pragmatic Sketch
Jens Meierhenrich
AbSTRAcT
This article analyzes the promise—and limits—of pro-democratic intervention in international law. It revisits Immanuel Kant’s influential prescription for peace, developed in Perpetual Peace: A Philosophical Sketch (1795), which has served as the foundation for democratic peace theory. This article emphasizes the unintended consequences of pro-democratic intervention in the international system. It finds arguments for the promotion of democratic entitlements deserving, but evidence for the existence of a right to democratic governance in international law wanting. The analysis, which incorporates evidence from cases, and synthesizes insights from scholarship in international law and international relations, casts doubt on the morality of democracy in the pursuit of international peace and security. It demonstrates that international lawyers have insufficiently appreciated the fact that democracy, if not handled with care, can underwrite democratic war—rather than democratic peace. This article argues that if the international community, however defined, truly aspires to realize the Kantian imperative of perpetual peace, it must enshrine democratic rights in unfamiliar cultures with more circumspection. Otherwise democratic rights become democratic wrongs, and policies of perpetual peace become prescriptions for perpetual war.
* Jens Meierhenrich is Assistant Professor of Government and of Social Studies at Harvard University, where he is also a Faculty Associate at the Weatherhead Center for International Affairs. He recently served as the Carlo Schmid Fellow in Trial Chamber II of the International Criminal Tribunal for the Former Yugoslavia, and has previously worked with Luis Moreno Ocampo, the Chief Prosecutor of the International Criminal Court. A Rhodes Scholar, Professor Meierhenrich is the author of a genocide trilogy, comprising The Rationality of Genocide (Princeton: Princeton University Press, forthcoming); The Structure of Genocide (Princeton: Princeton University Press, forthcoming); and The Culture of Genocide (Princeton: Princeton University Press, forthcoming) as well as a series of articles on comparative and international law and politics. His research has been supported by, among others, the US Holocaust Memorial Museum, the Social Science Research Council, the American Council of Learned Societies, the Japan Foundation, the American Bar Foundation, and the Harvard Academy for International and Area Studies. Human Rights Quarterly 29 (2007) 631–673 © 2007 by The Johns Hopkins University Press

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HUMAN RIGHTS QUARTERLY Well, my dear Adeimantus, what is the nature of tyranny? It’s obvious, I suppose, that it arises out of democracy. . . .

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Then, as I was just saying, an excessive desire for liberty at the expense of everything else is what undermines democracy and leads to the demand for tyranny.
Plato, The Republic1

I.

INTRodUcTIoN

This article analyzes the promise—and limits—of pro-democratic intervention in international law. It revisits Immanuel Kant’s influential prescription for peace, developed in Perpetual Peace: A Philosophical Sketch (1795), which has served as the foundation for democratic peace theory.2 The article emphasizes the unintended consequences of pro-democratic intervention in the international system. It finds arguments for the promotion of democratic entitlements deserving, but evidence for the existence of a right to democratic governance in international law wanting. The analysis, which incorporates evidence from cases, synthesizes insights from scholarship in international law and international relations. It casts doubt on the morality of democracy in the pursuit of international peace and security. As John Owen writes, “Since liberalism is no final solution to the problem of war, it must not be allowed to efface all other values in international life. Should we ignore Kant’s own caution, we may find ourselves fighting perpetual war for the sake of perpetual peace.”3 The remainder is organized as follows. Part II provides an overview of democratic peace theory, with particular emphasis on Kant’s philosophy of international law. Part III examines the debate in international legal scholarship over a right to democratic governance in international law, a debate that has co-evolved with the Kantian turn in international relations. Part IV analyzes the meaning of both advances for pro-democratic intervention in the international system. Part V inquires into the promise of promoting democratic ideology in—and exporting democratic institutions to—frequently unfamiliar cultures.4 Part VI concludes and considers implications.
1. Plato, the RePublic 382 (Desmond Lee, trans., Penguin Books 2d ed. 1974) (1955). For Plato, the defining attributes of democracy are equality of political opportunity and individual freedom (“There is liberty and freedom of speech in plenty, and every individual is free to do as he likes.”). Id. at 375. The usual caveats apply. immanuel Kant, Perpetual Peace: A Philosophical Sketch, in Kant’s Political WRitings 93 (Hans Reiss ed., 1970). John M. Owen IV, International Law and the “Liberal Peace,” in DemocRatic goveRnance anD inteRnational laW 343, 385 (Gregory H. Fox & Brad R. Roth eds., 2000). For an important contribution to the study of democracy in unfamiliar cultures—and the variety of meanings attached to the supposed ideal—see FReDeRic c. schaFFeR, DemocRacy in tRanslation: unDeRstanDing Politics in an unFamiliaR cultuRe (1998).

2. 3. 4.

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Perpetual War

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II. dEMocRATIc PEAcE The debate over the salience of the democratic peace has been heralded as one of the most important discussions in international politics. Since the 1980s, the democratic peace proposition
has excited both scholars and foreign policy makers. For scholars, it proposes a regularity of a strength rarely seen in social phenomena. Political scientists despairing of being able to predict the future take heart at the prospect of saying with confidence that no two liberal states will wage war against one another.5

Outside the academy, the democratic peace theory
has rekindled flickering hopes that perpetual peace is within humankind’s grasp. The remarkable spread of political liberalism since the 1970s, most spectacularly in Central and Eastern Europe but also in Southern Europe, Latin America, Asia, and Africa, combines with the proposition to suggest that there will be fewer wars in the coming years—or at least that fewer pairs of states or dyads will make war on each other.6

Democratic peace theory, in other words, “has provided a ready-made principle for foreign policy makers in a time, when, with no more Soviet threat, principles are difficult to come by.”7 This principle has—rather unexpectedly—informed not only the international ambition of the US administration led by former President Bill Clinton, but the international ambition of his successor as well. The terrorist attacks of 11 September 2001 inaugurated a period of conservative internationalism in American politics. Under the leadership of George W. Bush, the United States has, contrary to campaign pronouncements, become a proponent of pro-democratic intervention. Three questions arise in this context: (1) What has occasioned the democratic turn in international ambition? (2) Is the democratic turn genuine? (3) What are the consequences thereof for international security? A. The Kantian Tripod Before addressing the aforementioned questions, a discussion of Kant’s philosophy of international law is in order. In 1795, Kant distinguished three “definitive articles” of peace, which together constituted a tripod of peace. In the contemporary international system, Kant’s definitive articles of

5. 6. 7.

John m. oWen iv, libeRal Peace, libeRal WaR: ameRican Politics anD inteRnational secuRity 6–7 (1997). Id. at 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).

104. Kant. 1 (Oct. Interdependence. Doyle. tRiangulating Peace: DemocRacy. Doyle. 29 Figure 1. Interdependence. Bruce Russett and John Oneal have analyzed the function of democracy in the Kantian tripod: Kant began his theorizing with attention to democracy. aFF. 9. Davis. Triangulating Peace: Democracy. Kant. John R. at 99. 205 (1983)[hereinafter Doyle. and Foreign Affairs. Liberalism. Democracy.9 A passage from Perpetual Peace illustrates the point: 8. 12 Phil. see most importantly. 323 (1983)[hereinafter Doyle. Rev. For important expositions of democratic peace theory. Kenneth N. 1999). 107–08. 2001). and War. Oneal & Bruce Russett. 52 WoRlD Pol. Liberal Legacies. 1996). aFF.634 HUMAN RIGHTS QUARTERLY Vol. He was confident that democracies would be more peaceful than autocracies for a simple reason: in a democracy. economic interdependence (“cosmopolitan right” and “universal community”).8 Figure 1 depicts the constitutive sides of the Kantian tripod as well as their interrelationships. 1885–1992. Oneal. Waltz. Kant. & Pub. supra note 2. Kant. bRuce Russett & John oneal. Pol. 12 Phil. 331 (1962). The Third Leg of the Kantian Tripod for Peace: International Organizations and Militarized Disputes. p. Liberal Legacies Part 2]. anD inteRnational oRganizations 273 (2001). and international organizations (“pacific federation”). Liberal Legacies. & Pub. Bruce Russett. The Kantian Tripod Source: Adapted from Bruce Russett and John Oneal. 52 int’l oRg. with particular reference to Kant’s philosophy of international law. those who would bear the costs of a war are the ones who decide whether it shall be fought. & David R. Michael W. Liberal Legacies]. . The Kantian Peace: The Pacific Benefits of Democracy. inteRDePenDence. 56 am. 35. 441 (1998). and International Organizations (New York: Norton. John R. 1950–1985.. Michael W. FRieDen DuRch Recht: Kants FRieDensiDee unD Das PRoblem eineR neuen WeltoRDnung (Matthias Lutz-Bachmann & James Bohman eds. sci. and International Organizations. It is in many ways the linchpin of his analysis. Part 2. peace correspond to the interlocking institutions of democracy (“republican constitution”). and Foreign Affairs.

financial power can probably be relied on most. . And of all the powers (or means) at the disposal of the power of the state. Russett & oneal. are associated with fewer incidences of militarized international disputes. as indicated by the bilateral trade-to-GDP ratio. Before it can be “formally instituted. . the consent of the citizens is required to decide whether or not war is to be declared. 13. For an important critique. As Kant wrote. at 105. is the maintenance of international peace and security: 10. . Id.10 Economic Interdependence. the likelihood of dyadic conflict drops by 52 percent. 12. thereby reducing the incidence of international war. 11. and. As Kant wrote. it is very natural that they will have great hesitation in embarking on so dangerous an enterprise. see Joanne goWa. Doyle. If both bilateral trade and openness are increased. such as doing the fighting themselves.” the perpetual peace also requires a “pacific federation” (foedus pacificum). and it cannot exist side by side with war. Thus states find themselves compelled to promote the noble cause of peace. then and now.2007 Perpetual War 635 If .15 The purpose of this federation. supra note 2. .11 An increase in the former is said to bring an increase in the latter. for a suspension of hostilities is not in itself a guarantee of peace. . at 350.”13 The analysis of quantitative data has. supplying the costs of the war from their own resources.12 Michael Doyle puts it thus: “Kant relied upon international commerce to create ties of mutual advantage that would help make republics pacific. borne out the pacific consequences of economic interdependence: Higher levels of economically important trade. at 114. .” Kant. tRiangulating Peace. . by and large. ballots anD bullets: the elusive DemocRatic Peace 14–19 (1999). A one standard deviation increase in the bilateral trade-to-GDP ratio reduces the annual probability of a dispute more than one-third below the baseline rate. For this would mean calling down on themselves all the miseries of war.14 International Organizations. though not exactly from motives of morality. The achievement of economic interdependence (what Kant believed to be a function of “the right of a stranger not to be treated with hostility when he arrives on someone else’s territory”) rests on the relationship between exchange in goods and services and the opportunity costs of war. painfully making good the ensuing devastation. the spirit of commerce sooner or later takes hold of every people. 14. supra note 9. at 98. . at 154. Economic openness (the total trade-to-GDP ratio) is also associated with a reduced risk of conflict. Id. supra note 2. as the crowning evil. supra note 9. Liberal Legacies Part 2. “the perpetual peace must be formally instituted. having to take upon themselves a burden of debt which will embitter peace itself and which can never be paid off on account of the constant threat of new wars. Kant. 15. at 100. .

the collapse of the former Soviet Union. Kant’s belief in the realization of a perpetual peace through the promotion of democracy. A Neo-Kantian Perspective: Democracy. see Bruce Russett. but merely to preserve and secure the freedom of each state in itself. Jon C. Democracies create free markets that . with particular reference to regional organizations. Id. Pevehouse.18 See Figure 2. supra 17. in secuRity communities 368 (Emanuel Adler & Michael Barnett eds. 515 (2002). 19 int’l secuRity 5 (1994). make for more reliable trading partners and are far less likely to wage war on one another. . For a tentative assessment of the salience of this leg of the Kantian tripod in the current international system. The White House. and the spread of democracy became a policy pillar during the administration of former US President Clinton. along with that of the other confederated states.17 Recent advances have departed from the Kantian logic. and the entire community of nations. and the resulting end of the Cold War. it is in our interest to do all that we can to enlarge the community of free and open societies . While democracy will not soon take hold everywhere.org/spp/military/docops/national/1996/stra. will be. Democracy from Outside-In? International Organizations and Democratization. see Christopher Layne. 1996). 56 int’l oRg. 1998). as do men in a state of nature.fas. It featured prominently in the UN Agenda for Peace. available at http://www.. and international organizations has become a staple of foreign policy-making in the advanced industrialized democracies and leading international organizations. . although this does not mean that they need to submit to public laws and to a coercive power which enforces them. . which was compiled under the stewardship of UN Secretary-General Boutros Boutros-Ghali. For a critical assessment. Interdependence. It advances our interests because we know that the larger the pool of democracies. The administration let it be known that the promotion of democratic ideology and the export of democratic institutions. Kant or Cant: The Myth of the Democratic Peace. . . economic interdependence. at 104. and International Organizations in Building Security Communities. as described in the preceding section. 16. The Kantian Logic Prompted by the third wave of democratization. . the emphasis is on the first leg of the Kantian tripod—democracy. does more than foster our ideals.636 HUMAN RIGHTS QUARTERLY Vol. The operationalization of democracy as an independent variable has since led to the development of two contending explanations of the democratic peace: (1) ideology and (2) institutions. the better off we.16 b. 29 This federation does not aim to acquire any power like that of a state. 18. also known as the normative and the structural models of the democratic peace. In these advances. A National Security Strategy of Engagement and Enlargement ¶ 37 (Feb. reprinted in Debating the DemocRatic Peace. htm [hereinafter National Security Strategy 1996].

131. 624. J. 2000). See also idem. The former holds that democracies are less war-prone than nondemocracies regardless of the context. 500 (1995). Roth. Political conflicts in democracies are resolved through compromise rather than through elimination of opponents. gRasPing the DemocRatic Peace: PRinciPles FoR a Post-colD WaR WoRlD (1993). Thomas Risse-Kappen. p. p. to this day. 19. sci. Zeev Maoz & Bruce Russett. that democratic peace theory knows of two major variants: (1) the monadic variant. 87 am. The Causal Logic Of Democratic Peace Source: Adapted from John M.’” in Gregory H. “International Law and the ‘Liberal Peace. The normative model of the democratic peace focuses on the causal role of ideas. Rev. IV.19 The normative model “emphasizes the norms constituting the collective identity of actors in a democratic polity instead of utilitarian cost-benefit calculations or the complexity of decision-making processes. 625 (1993). Winning does not require elimination of the opponent. . and (2) the dyadic variant. 2 (Fall 1994). 19. 1946–1986. See also what remains. reprinted in Michael E. 359. without elaboration. Democratic Governance and International Law (Cambridge: Cambridge University Press. eds. Lynn-Jones. Brown. Normative and Structural Causes of Democratic Peace. Owen. No. The latter holds that democracies are not less war-prone than non-democracies per se. int’l Rel. 491. Vol. eds. Fox and Brad R.. Democratic Peace – Warlike Democracies? A Social Constructivist Interpretation of the Liberal Argument. Miller. the most complete analysis of the democratic peace.2007 Perpetual War 637 Figure 2. and losing does not prohibit the loser from trying again. Sean M. Steven E.”20 Two funcnote 7 at 157.. 1996). Zeev Maoz and Bruce Russett present the underlying argument: Democratic regimes are based on political norms that emphasize regulated political competition through peaceful means. as opposed to interests. “How Liberalism Produces Democratic Peace. 1 euR. namely bRuce Russett. Pol. Debating the Democratic Peace (Cambridge: MIT Press. Ideology. 20. but rather that democracies are less war-prone in their international interactions with other democracies. I should also mention.” International Security..

because they are governed by their citizens’ true interests. supra note 3. For recent empirical assessments by international lawyers. at 356. More generally. see DemocRatic accountability anD the use oF FoRce in inteRnational laW (Christine Koh & Harold Jacobson eds. . ed. at 354. Lisa L. See Kant. One of the most important images that a democratic state can communicate to its environment is a sense of political stability. at 491. 53 int’l oRg. supra note 19. Democratic States and Commitment in International Relations.24 In democracies. provides a framework of shared and collective understandings (what Emile Durkheim termed “collective consciousness”) as well as a mechanism for social interaction. supra note 14. inteRests. For an alternative explanation of institutional effects in the democratic peace. Democratic ideology. Martin. “that the people who fight and fund war have the right to be consulted. institutions. The relationship between domestic politics and international security in the normative model is conceived as follows: “Political culture and political norms constitute images that a state transmits to its external environment. 109 (1996). Normative and Structural Causes of Democratic Peace.”22 Institutions. elections anD WaR: the electoRal incentive in the DemocRatic Politics oF WaR anD Peace (1999). the argument goes. in libeRalization anD FoReign Policy 67–104 (Miles Kahler.. see RisseKappen. 26. Owen IV. 233 (1999). “a plethora of institutions exists that prevents would-be renegade leaders of democratic polities from embarking upon military adventures abroad. Among them are opposition parties.”25 Liberalism. maRtin. 25. can be distinguished: (1) democratic ideology as a communication device. most importantly. which itself is a concatenation of democratic norms. Institutions are said to create a dependency between leaders and the electorate in which “the benefits of using military force accrue to leaders. International Law and the Liberal Peace. Do Democratic Institutions Constrain or Inform? Contrasting Two Institutional Perspectives on Democracy and War. supra note 2. lisa l. and (2) democratic ideology as a regulatory device. anD inFoRmation: Domestic Politics anD inteRnational Relations (1997). supra note 20. and trustworthy. which harmonize [qua political culture and political norms] with all individuals’ true interests around the world. see. 24. 29 tions of democratic ideology. supra note 3. before entering it. see Kurt Taylor Gaubatz. at 7. says. supra note 19. see helen milneR. at 625. periodic elections. see Kenneth A. On communicative action in the making of the democratic peace. More generally. in other words. goWa. predictable. Owen IV. Russett.”23 The structural model emphasizes the institutional constraints of leaders.”26 The election of representatives qua democratic institutions introduces the imperative of deliberation into foreign policy-mak21. 2002). International Law and the Liberal Peace. Legislative Influence and International Enagagement. gRasPing the DemocRatic Peace. KuRt tayloR gaubatz. the ideology of democracy. The structural model of the democratic peace revolves around the distributional effects of institutions. Schultz. Maoz & Russett. and the presence of a legislature. through representatives they elect. 50 int’l oRg. DemocRatic commitments: legislatuRes anD inteRnational cooPeRation (2000). 22..638 HUMAN RIGHTS QUARTERLY Vol.”21 Democratic states “are believed reasonable. 23. while its costs are dispersed among the population. On elections and the democratic peace. 1997).

In the 1995 version of the policy document. reprinted in Debating the DemocRatic Peace. 50 int’l oRg. at 202. National Security Strategy 1996. south ameRica. see David E. 20 int’l secuRity 123 (1995). and a prohibition of war against democracies. behavioral. Democracy and Peace: Putting the Cart Before the Horse?. democracy will flourish. For an account of reputation in the international system. RePutation anD inteRnational Politics (1996). Polities and Peace. The Insignificance of the Democratic Peace. . 141 (1996). propose to enter the debate over the salience of the democratic peace in this article. rather than zero-sum. supra note 17. Leading 27. or checks and balances. These ideas produce a democratic ideology and democratic institutions. This tripartite standard of democratic consolidation stems from Juan J.”28 In conjunction democratic ideology and democratic institutions constrain government and underwrite the democratic peace. Domestic Structure and Preventive War: Are Democracies More Pacific?. aside from the ones featured in the analysis. reprinted in Debating the DemocRatic Peace. Randall L. linz & alFReD stePan. dEMocRATIc RIGHTS The ascendancy of the democratic peace proposition in the late twentieth century coincided with important developments in international law. supra note 7. PRoblems oF DemocRatic tRansition anD consoliDation: southeRn euRoPe. This in turn contributes to an international reputation of deliberative politics: “Posing no threat to each other. 251 (1992). Spiro. anD Post-communist euRoPe 5–6 (1996). in the domestic realm are said to spill over into the international realm. and. democratic institutions realize these values. Schweller. supra note 7. 29. terms. see Jonathan meRceR. See Figure 2. For important challenges. because if political and economic institutions are secure.27 The democratic constraints. and constitutional consolidation of democracy. at 239. Henry S. The result is a marketplace of ideas that makes possible free debate. A National Security Strategy of Engagement and Enlargement. 28. however. democratic states tend to view their relationships with other democratic states in positive-sum. William R. I do not. Thompson. underwrites the attitudinal. the US administration made explicit reference to the mutually constitutive roles of democratic ideology and democratic institutions: It is therefore in our interest that democracy be at once the foundation and the purpose of the international structures we build through this constructive diplomacy: the foundation. 235. Critics of democratic peace theory abound. While democratic ideology enshrines the value of democracy. 19 int’l secuRity 50 (1994). in turn. and international cooperation substitutes for international war as a means of dispute resolution.29 III. ¶ 36. The causal logic of the democratic peace is straightforward and intuitively appealing. because the institutions will be a reflection of their shared values and norms. Democratic ideas form the independent variable. Farber & Joanne Gowa.2007 Perpetual War 639 ing. 44 WoRlD Pol. the purpose. where they constrain international actors.

”30 Drawing on the imposition. For a more comprehensive treatment. Roth. Franck. applicable to all and implemented through global standards. 539 (1992). have made the case for an “emergent right to democratic governance” in customary international law. Democratic Governance. OEA/Ser. Franck. A. O. (1991). at 47. according to Franck. supra note 30. supra note 30. 31. This newly emerging “law”—which requires democracy to validate governance—is not merely the law of a particular state that.1. Doc. Fox. int’l l. “This evolution 30. The imposition of democracy by international organizations gained legitimacy. Democratic Governance.A. at 47. Roth. Democracy and the Body of International Law. one that increasingly will be promoted and protected by collective international processes.33 The quest for perpetual peace in this period was underwritten from two sides of the Kantian tripod. goveRnmental illegitimacy in inteRnational laW (1999)[hereinafter Roth. at 114. like the United States under its Constitution. of an unprecedented legal obligation on the state of Haiti. Franck. J. a new legal entitlement is being created. has imposed such a precondition on national governance.”31 The OAS resolution stated that “the solidarity of the American states and high aims which are sought through it require the political organization of those states on the basis of the effective exercise of representative democracy. 29 scholars. The Emerging Right to Democratic Governance.”32 Franck welcomed the resolution with the following words: Undeniably. Support to the Democratic Government of Haiti. 32. 86 am. F/V.1/MRE/RES. corr.S. at 91. Franck asserted in the early 1990s that democracy was “on the way to becoming a global entitlement. Franck identified a transformation of the idea of a democratic entitlement “from moral prescription to international legal obligation. 46 (1992)[hereinafter Franck.640 HUMAN RIGHTS QUARTERLY Vol. Thomas M. from Thomas Franck to Michael Reisman. see bRaD R. 33. int’l l. goveRnmental illegitimacy]. The Right to Political Participation in International Law. 17 yale J. albeit in different ways. with the help of regional and international organizations. Resolution I. in DemocRatic goveRnance anD inteRnational laW. seek to establish democratic rights in international law. supra note 3. Freedom Thomas Franck led the opening charge. pmbl. James Crawford. Fox & Brad R. and defended the morality of “pro-democratic intervention. 46. in DemocRatic goveRnance anD inteRnational laW. It is also becoming a requirement of international law. Gregory H.” Both arguments. Democratic Governance]. by virtue of its normative and customary evolution in the twentieth century. Influenced undoubtedly by the changes in the international system. by the Organization of American States (OAS).1/91. . Democracy in International Law—A Reprise. based in part on custom and in part on the collective interpretation of treaties. supra note 3. See also Gregory H.

Then came the normative entitlement to free expression as a human right. not political societies in general. on Hum. at 257. 35. Introduction: The Spread of Liberal Democracy and Its Implications for International Law. and transnational—can create opportunities to reach freedom’s tantalizingly proffered goals. 38. 37. Id.57 (1999). 1999). and assembly are examples of associational and discursive entitlements which are already formulated in conventions.. The resolution. was deeply contested. FouR essays on libeRty 118 (1969). FRancK. although accelerating after 1986. . is the right of people to be consulted and to participate in the process by which political values are reconciled and choices made. which some believe revolves around positive liberty (freedom to) rather than negative liberty (freedom from). U. press. But what exactly does a right to democratic governance entail? “The right to democracy. at 90. U. the emPoWeReD selF]. Two Concepts of Liberty. ESCOR.2007 Perpetual War 641 has occurred in three phases. although dealing only with decolonization. supra note 36.” Although the intent of this obligation was to influence colonial powers. Franck has elaborated on the sources of the presumed right to democratic governance in international law: The evolution of a principled legal basis for the democratic entitlement.N. Comm’n. Some aspects of this right are encompassed in existing human rights instruments. See Summary Record of the 57th Meeting.4/1999/ SR. it did have an impact beyond the colonies. when the UN Commission on Human Rights promulgated a resolution listing “rights of democratic governance.37 As Franck writes. which does not recur in the resolution itself. received its first impetus in the United Nations Charter.. religion.” Gregory H. in DemocRatic goveRnance anD inteRnational laW. supra note 3. with several States expressing doubts as to democracy’s legal status as a right. First came the normative entitlement to selfdetermination. ¶¶ 1–2. 36. For these. to take due account of the political aspirations of the peoples. Doc.N. 55th Sess. the emPoWeReD selF: laW anD society in the age oF inDiviDualism 263 (1999)[hereinafter FRancK. requires member states to “develop self-government. that the title of the resolution. It was put to “a separate vote that drew twelve nays and thirteen abstentions.36 Central to the ongoing debate is the autonomy of democracy. was passed by a vote of 51–0 with two abstentions (China and Cuba). and to assist them in the progressive development of their free political institutions. Rts. Roth. The right to electoral democracy 34.” while simultaneously affirming that “democracy fosters the full realization of all human rights.”35 Elsewhere. Article 73.. See Isaiah Berlin. Fox & Brad R. Note. Now [in 1992] we see the emergence of a normative entitlement to a participatory electoral process. in Political thought 124 (Michael Rosen & Jonathan Wolff eds. at 3. however. only a boost onto the benign back of government—local. isaiah beRlin. self-realization requires more than getting the government off their backs. entitled Promotion of the Right of Democracy.” according to Franck.”38 Such is the meaning of freedom. E/CN. national.”34 A fourth stage was reached in 1999. the emPoWeReD selF. thomas m. FRancK. Rights to free speech. “For some.

l. 41. 1907 (1992). As with other rights. are already provided for in international human rights instruments. . int’l l. supra note 30. one way to promote universal and perpetual nonaggression—probably the best and. Anne-Marie Slaughter. as Anne-Marie Slaughter remarks.”41 The 1990s. Consequently. 1998). thomas m. it is necessary to define the entitlement. The historical record bears this out. Pushing the Limits of the Liberal Peace: Ethnic Conflict and the “Ideal Polity. “attributes other than democracy itself. then.”42 In addition. Id. Most scholars. Prior to the events of 1989–91. As Gregory Fox and Brad Roth wrote.” in inteRnational laW anD ethnic conFlict 128. such as guarantees of civil and political rights.40 The argument in favor of a right to democratic governance amounts to a radical shift in the focus and concern of international law: from how states interact in the international system to how states themselves are configured. such as how a national government is formed. 40. FaiRness in int’l laW](emphasis added). “the emergence of a democratic polity as the basic unit of the international system is the natural corollary at the systemic level. 29 builds on these. which comprises subsidiary “discursive rights” and “electoral rights. 503 (1995).642 HUMAN RIGHTS QUARTERLY Vol. “democracy” was a word rarely found in the writings of international lawyers. 53 (1992). FaiRness in inteRnational laW anD institutions 83–84 (1995)[hereinafter FRancK. 43.” Franck invokes Kant’s philosophy of international law. and to enforce the right against violations. The Kantian Theory of International Law.”43 39. the only way—is to make democracy an entitlement of all peoples. to establish instruments of compliance verification. accepted the 1987 view of the American Law Institute that “international law does not generally address domestic constitutional issues. J.” see FRancK. at 98–134. 6 euR. and certainly most States. Anne-Marie Slaughter. Democratic Governance. supra note 35. International Law in a World of Liberal States. For other invocations of the democratic peace in international legal scholarship. On the distinction between “discursive rights” and “electoral rights. Rev. at 88. reminding us that [n]either Kant nor his modern interpreters make the argument that democracies will not fight: only that they are not disposed to fight each other. If Franck’s right to democratic governance is realized at the individual level. at 142. 92 colum. Law among Liberal States: Liberal Internationalism and the Act of State Doctrine. see Anne-Marie Slaughter.39 Interestingly. Rev. at 1. Thomas M. FRancK. spelled a shift from procedure to substance. 92 columbia l. Fox & Roth.. Franck. Fernando Tesón. but seeks to extend the ambit of protected rights to ensure meaningful participation by the governed in the formal political decisions by which the quality of their lives and societies are shaped. FaiRness in int’l laW. supra note 39. 142 (David Wippman ed. perhaps. in defending the right to democratic governance. 42.

Id. said Reisman. Id. Force Linked to the case for an emergent right to democratic governance is the argument in support of pro-democratic intervention. 45. . 78 am. 642. then. int’l l. at 645. it is important to remember that norms are instruments devised by human beings to precipitate desired social consequences. Michael Reisman was the originator of the notion. was immanently appealing: There is neither need nor justification for treating in a mechanically equal fashion Tanzania’s intervention in Uganda to overthrow [Idi] Amin’s despotism. according to Reisman. Id. for coercion is a ubiquitous feature of all social life and a characteristic and indispensable component of law. and with appropriate regard for the factual constellation in the minds of the drafters. he called for a reinterpretation of Article 2(4) of the United Nations Charter. for the use of force? Reisman had this to say: Coercion should not be glorified. on the other. like the causal logic of the democratic peace. Coercion and Self-Determination: Construing Charter Article 2(4). which prohibits “the threat or use of force against the territorial integrity or political independence of any state.”44 Reisman’s argument. at 644. 642 (1984).46 What role.45 The logic for a unification of law and morals in international practice. J. Id. 46. but whether it has been applied in support of or against community order and basic policies.47 The denial of what came to be called pro-democratic intervention.”48 Over the course of the late twentieth century. on the one hand.2007 Perpetual War 643 b. 47. 48. In a 1984 editorial in the American Journal of International Law. The critical question in a decentralized system [like the international system] is not whether coercion has been applied. is a “rape of common sense. and whether it was applied in ways whose net consequences include increased congruence with community goals and minimum order. but it is naïve and indeed subversive of public order to insist that it never be used. and Soviet intervention in Hungary in 1956 or Czechoslovakia in 1966 to overthrow popular governments and to impose an undesired regime on a coerced population. W. One should not seek point-for-point conformity to a rule without constant regard for the policy or principle that animated its prescription. was the following: Here as in all other areas of law. he elaborated his case for pro-democratic intervention: 44. Michael Reisman.

835 (2001). 89 am.644 HUMAN RIGHTS QUARTERLY Vol. J. 833. Roth. ethics anD FoReign inteRvention (Deen K. 516 (1990). Just WaR oR Just Peace?: humanitaRian inteRvention anD inteRnational laW (2001). J. chRistine gRay. Id. cautioning that [T]he United Nations and all people committed to a public order of human dignity must keep in mind that this time they are not engaged in an elective or optional conflict. 866. supra note 3. see Michael Byers & Simon Chesterman. in DemocRatic goveRnance anD inteRnational laW. int’l l. thomas FRancK. Michael Reisman.51 While the aforementioned contributions to the philosophy of international law–-meaning the body of work concerned with the moral foundations of international law—are of great significance for international society. supra note 3. Leading works on “ordinary” intervention and international law include inteRvention in WoRlD Politics (Hedley Bull ed. Chatterjee & Don E. and how the external action will affect the expression and implementation of popular sovereignty. 82. 1984). they must choose between only two possible exit strategies: either victory or defeat. 2003). supra note 3. simon chesteRman.. For important contributions of recent origin. and in a war of self-defense. 2003). which. int’l l.. inteRnational laW anD the use oF FoRce (2000). the People”: Pro-democratic Intervention in International Law. legal anD Political Dilemmas (J. RecouRse to FoRce: state action against thReats anD aRmeD attacKs (2002). Michael Reisman. 82–84 (1995). int’l l. J. Brad D.. Holzgrefe & Robert O. in DemocRatic goveRnance anD inteRnational laW. The international law about using those weapons will also have to be developed. 2003). at 833. while faithful to the policies and principles of international humanitarian law. 84 am. 876 (1990). int’l l. Scheid eds.. David Wippman. W. 29 One can no longer simply condemn externally motivated actions aimed at removing an unpopular government and permitting the consultation or implementation of the popular will as per se violations of sovereignty without inquiring whether and under what conditions that will was being suppressed. . J. Michael Reisman. In Defense of World Public Order. at 328. The Invasion of Panama was a Lawful Response to Tyranny. at 293. will ensure their continuing relevance in new contexts. DemocRatic accountability anD the use oF FoRce in inteRnational laW (Charlotte Ku & Harold Jacobson eds. at 259. in DemocRatic goveRnance anD inteRnational laW. For an application of the argument. Pro-democratic Intervention by Invitation. 95 am.50 Do viable pathways to democracy’s victory exist? Here is the map that Reisman drew: Democracy’s arsenal will have to develop new offensive and defensive weapons and new modes of warfare that can destroy the enemy’s capacity without destroying democracy itself. humanitaRian inteRvention: ethical. The Illegality of “Pro-democratic” Invasion Pacts. W.49 Reisman fortified his argument in the aftermath of 11 September 2001. see Anthony D’Amato. 50. They are under mortal attack. W. 51. “You. The different circumstances of each new conflict will require different adaptations. 84 am. im49. Haiti and the Validity of International Action. L. Sovereignty and Human Rights in Contemporary International Law. Keohane eds.

for the promotion of democratic peace makes necessary the waging of democratic war. they have also supplied “the costs of the war from their own resources. J.. 613 (2001). Id. anD state-builDing (2004). through their representatives. 53. at 100. J. int’l l.55 In this pursuit.54 They have themselves been asked to partake in the fighting for perpetual peace. a neW tRusteeshiP? the inteRnational aDministRation oF WaR-toRn teRRitoRies (2002). have called “down on themselves all the miseries of war. 52. caPlan. Kant. at one point in the course of pro-democratic intervention. The Administration of Kosovo and East-Timor by the International Community. 95 am.Q. Ralph Wilde.”56 What is more. to more pragmatic sketches of international law.” as the international administration of war-torn territories has become known. Id. Matthias Ruffert. 65 am. See RichaRD D. and the politics thereof. see Louis Henkin. 583 (2001). These have come to the fore with particular force in the aftermath of 11 September 2001.58 Enshrining democratic entitlements in international law—with or without international territorial administration—has paradoxical consequences for international security. . supra note 2. and from Kosovo to Iraq.2007 Perpetual War 645 portant pragmatic questions for international law and international politics remain.. 57. 54. “as the crowning evil. For this famous finding. Id.” have taken “upon themselves a burden of debt” which has already embittered peace itself “and which can never be paid off on account of the constant threat of new wars. citizens in advanced industrialized democracies. 55. The latter two. 50 int’l & comP. 544 (1971)[hereinafter Henkin. Are reports of the death of Article 2(4) still greatly exaggerated?53 IV.”57 Examples range from Grenada to Panama. The Reports of the Death of Article 2(4) Are Greatly Exaggerated. you. int’l l. the PeoPle: the uniteD nations. as well as Afghanistan and East Timor. simon chesteRman.52 The emphasis is on the implications of pro-democratic intervention for international law and practice. see also the Politics oF inteRnational laW (Christian ReusSmit ed. tRansitional aDministRation.” to invoke the language of Kant. Article 2(4)]. On this topic more generally.” the inevitable consequences of what some call democratic legitimism. 58. have been the site. 56. This part of the article is concerned with “the dark sides of virtue. From Danzig to East Timor and Beyond: The Role of International Territorial Administration. l.” and sought to “painfully” make good “the ensuing devastation. of “international territorial administration. The following therefore turns from the philosophical sketches of Kant et al. dEMocRATIc WAR In recent years. 2004). these citizens.

at 426. in turn. 62. 59.61 The promotion of democracy. The result of pro-democratic intervention is democratic war. see Larry Diamond. For most of the twentieth century. 29 Legitimism in any form is inherently aggressive. thomas J. the constitutional legitimism of the Tobar Doctrine.59 In the following the analysis turns to the causal logic of democratic war. or the ideological legitimisms of the Brezhnev and Reagan Doctrines. 60. see. Promoting Democracy. genuine and otherwise. The following further elucidates the logic of democratic war. On Wilson’s internationalism. goveRnmental illegitimacy. The promotion and export of these democratic products. Once again democratic ideas form the independent variable. 2002) available at http://www. These ideas produce a democratic ideology and democratic institutions. 87 FoReign Policy 25 (1992). The National Security Strategy of the United States 3 (17 Sept. It has its roots in the liberal internationalism of former US President Woodrow Wilson. . to enD all WaRs: WooDRoW Wilson anD the Quest FoR a neW WoRlD oRDeR (1992). A. supra note 30.gov/nsc/nss. theorized here for the first time. legitimism’s historic purpose has been to disparage the right of one state to resist impositions by other states. successive US administrations have sought. has remained a cornerstone of the US National Security Strategy under President George W. For a contemporary perspective. The causal logic of democratic war. The subjects of democratic legitimism—whether they were subjects of liberal internationalism or conservative internationalism—have been citizens from places as diverse as interwar Europe and the Philippines as well as Japan and Bosnia-Herzegovina. most importantly. The White House. the national security strategy of the United States must start from these core beliefs and look outward for possibilities to expand liberty. Such disparagement is at odds with the most fundamental task of the United Nations system: the discouragement of interstate war. serve as the cause and consequence of pro-democratic intervention.” as Wilson memorably put it. KnocK. Roth. Promoting democracy60 The promotion of democracy. “to make the world safe for democracy. is as straightforward as the causal logic of democratic peace. internal and otherwise. 61. has been a cornerstone of US foreign policy for much of the twentieth century. albeit in different ways and for different reasons. Bush: “Embodying lessons from our past and using the opportunity we have today. See Figure 3.646 HUMAN RIGHTS QUARTERLY Vol.whitehouse.pdf [hereinafter National Security Strategy 2002]. Whether it be the dynastic legitimism of the Holy Alliance. despite initial reservations.”62 The expansion of liberty in international society has become a mission civilisatrice of the United States.

From the outset. by extension. and on law as the guarantor and definition of liberty. Rice. “talked grandly about breaking with the European past and starting ‘a new order of the world. RichaRD b.63 The struggle for democracy left an indelible mark on the emerging body politic. American understandings of the purpose of the Revolution quickly came after 1776 to turn on religious liberty as the antithesis of tyranny. c. including John Adams and Thomas Jefferson. The War of American Independence (1775–1783) in the United States. aRe We to be a nation?: the maKing oF the constitution 11 (1987).’”65 63. . beRnstein With Kym s. helps to account for the beginnings of American internationalism. imagining the laW: common laW anD the FounDations oF the ameRican legal system 354 (1997). even the leaders of the American Revolution. for example. noRman F. J. yet.2007 Perpetual War 647 Figure 3. 64. and the reconstruction of American law led the courts of the new Republic to develop a far more interventionist and innovatory attitude to their role. or the language of liberty. “The American colonists’ opposition to what they saw as the British government’s arbitrary and tyrannical assertions of power crystallized the political wisdom and experience accumulated over nearly two centuries. D. the civilizing mission of the most powerful democracy in world history. the language oF libeRty 1660–1832: Political DiscouRse anD social Dynamics in the anglo-ameRican WoRlD 382 (1994) (emphasis added). The Causal Logic of Democratic War Let us turn to the underpinnings of democratic legitimism. cantoR. the conflict of denominations steadily increased the authority of the group over the conscience of the individual. claRK. paradoxically.”64 This attitude became a constitutive element of the American creed and. 65.

reflected on this civilizing mission. but the normative underpinnings of this transformation as well.67 The Spanish-American war was critical in the transition from isolationism to internationalism. Adams. As Wilson pointed out. 726 (1902).68 Wilson’s reflections on “the ideals of America” offer important insights into the early days of democracy promotion.66 Taft’s statement. The government over sea had broken faith with them. but the faith that is 66. 69. Hancock. 68. which any man could understand. supra note 63. Wrote William Howard Taft in 1902: It is in my judgment the duty of the United States to continue government [in the Philippines] which shall teach those people individual liberty. 29 The first US Governor of the Philippines. Washington. Woodrow Wilson.—these were man of affairs. at 723. On the religious roots of democratic ideology. . . The Ideals of America. and the sources upon which it drew. more than one hundred years old. 67. in 1902. As quoted in tony smith.648 HUMAN RIGHTS QUARTERLY Vol. was Christian stewardship. Rutledge. .—not the faith of law. Henry. in the midst of US prodemocratic intervention in the Philippines. as Taft’s paternalistic language makes clear. . We have witnessed a new revolution. which shall lift them up to a point of civilization of which I believe they are capable. As Wilson noted. apart from strategic interests. No war ever transformed us quite as the war with Spain transformed us. in those first days when we were at the outset of our life. Morris. No previous years ever ran with so swift a change as the years since 1898. They fought for the plain right of self-government. not only highlights the transformation of American foreign policy following the Spanish-American War of 1898. see also claRK. with what spirit and mission we had come into the world”. where the United States began to craft the “new order of the world” and attempted to realize democratic entitlements repeatedly in the twentieth century. The source of internationalism. Boudinot. We have seen the transformation of America completed. “It was clear to us even then. who thought less of books than of principles of action. The nation that was one hundred and twenty-five years in the making has now stepped forth into the open arena of the world. ameRica’s mission: the uniteD states anD the WoRlDWiDe stRuggle FoR DemocRacy in the tWentieth centuRy 37 (1994). Pinckney. 90 atlantic monthly (1857–1932) 721. Franklin. Id. and which shall make them rise to call the name of the United States blessed. The battle of Trenton was not more significant than the battle of Manila.69 Wilson’s admiration of the revolutionaries’ commitment to democratic ideals knew no bounds: It was no abstract point of governmental theory the leaders of the colonies took the field to expound. Livingston.

at 723. for constitutional government.70 The foundations for American internationalism were laid: It means that in our stroke for independence we struck a blow for all the world.—in brief. Here was too new a thing. perseverance. Government without precedent was government without license or limit. supra note 66. at 311. and it will gain strength as it grows. at 724. Some men saw it then. George Bush the elder reaffirmed the US commitment to promoting democracy. a community whose strength. not government by agreement. But in answering the call to lead after World War II. at 312. Abandonment of the worldwide democratic revolution could be disastrous for American security. plunging mankind into another devastating conflict. History is summoning us once again to lead. and persuade them that they are not sprung from a nation in whose veins the blood of freedom circulates. It was government by innovation. illustrating the similarities between liberal internationalism and conservative internationalism: History’s lesson is clear. at home and abroad. When a war-weary America withdrew from the international stage following World War I. though they be tacit and nowhere spoken in any charter. Bush drew the following lessons for international practice: No society. 72. Id. but for the maintenance of accepted practices. Id. “We cannot falsify the pedigree of this fierce people. They had deep reason before their own day was out to know what it was that Burke had meant when he said. . and aggression unchecked. Now. . Hitherto the colonies had been let live their own lives according to their own genius. the world spawned militarism.”71 Ninety years later. and vote their own supplies to the crown as if their assemblies were so many parliaments. As quoted in smith. of a sudden. no continent should be disqualified from sharing the ideals of human liberty. The very generation of Englishmen who stood against us in that day of our struggling birth lived to see the liberating light of that day shine about their own path before they made an end and were gone. for the inviolable understandings of precedent. the Parliament in England was to thrust their assemblies aside and itself lay their taxes. Id.2007 Perpetual War 649 in precedents and ancient understandings. we built from the principles of democracy and the rule of law a new community of free nations.73 70. on 15 December 1992. fascism. Old ways were the only ways acceptable to English feet. 73. all men see it now. The revolutionists stood for no revolution at all. patience. . . 71.72 Based on his assessment of international history. and unity of purpose contained Soviet totalitarianism and kept the peace. The community of democratic nations is more robust than ever.

Pars pro toto. Yee. ever since 1898. 29 In conclusion. exPoRting DemocRacy: FulFilling ameRica’s Destiny (1991).77 As UN Secretary-General Kofi Annan noted in his 1998 report. The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa. the General Assembly responded with a resolution. A/52/871-S/1998/318 (1998)[hereinafter Secretary-General’s Report on Africa]. Americans’ understandings of the essence of their Great Experiment were modified.650 HUMAN RIGHTS QUARTERLY Vol. [T]he values. 1996). . The separation of Church and State soon entailed that the new Republic’s sense of its crusading mission to reform the old world was summed up not in Deism or Arianism but in the inclusive and seemingly secular term “democracy. .N. “in the absence of genuinely democratic institutions contending interests are likely to seek to settle their differences through conflict rather than through accommodation. The study’s title points to the mutually constitutive relationship between democratic ideology and democratic institutions. reluctantly and otherwise. other states were divided into “democracies” and the objects of reform. Katzenstein ed. U. 75. an agenDa FoR DemocRatization (1996). Hall ed. Report of the Secretary-General. institutions. boutRos boutRos-ghali.”78 Democracy. 52nd Sess. 50 int’l oRg. the year of Spain’s defeat in the Spanish-American war over Cuba. 1995). See also the Political PoWeR oF economic iDeas: Keynesianism acRoss nations (Peter A.. This chapter in US history sheds light on the path dependence of democratic ideology.. anD Political change (Judith Goldstein & Robert O. U. Exporting democracy76 In the 1990s. Agenda Item 10. The Causal Effects of Ideas on Policies.75 b. requesting the President of the General Assembly to establish “an open-ended ad hoc working group” to oversee the implementation of the recommendations contained in the report of the Secretary-General.N. 69 (1996). according to the Secretary74. and which has consumed US Presidents. Doc. at 383 (emphasis added). The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa. 77. Gradually. In its 81st plenary meeting. see also Joshua muRavchiK. 1993). an agenDa FoR Peace (2d ed. ¶ 77. . claRK. boutRos boutRos-ghali. stereotypes and aspirations of what the nineteenth century understood as the Puritan legacy were built into the minds of the rapidly multiplying citizens of the new Republic. The Causes of Conflict and the Promotion of Durable 76. . the cultuRe oF national secuRity: noRms anD iDentity in WoRlD Politics (Peter J. supra note 63. see Albert S. On the causal role of ideas in the international system. 78.. 1989)..” Democracy was now held to be the essence of the American experiment. Keohane eds.74 Such then are the ideological foundations of pro-democratic intervention—the case for which has been argued most fervently by international lawyers in the United States. the export of democratic institutions moved to the forefront of international solutions to problems of international peace and security. iDeas anD FoReign Policy: belieFs. GAOR.

80. the PeoPle.. U. 2004). see chesteRman.82 Evidence for the foisting of liberal-democratic values on populaces that do not share them abound in the international system. 79. DoWeR. Taft. Doc. disagree. adopted 16 Dec. . notwithstanding that the self-determination of peoples is itself a liberaldemocratic value. Forming States after Failure. 1998. none of the reasons offered by proponents of democratic entitlements in international law justify invoking a controverted interpretation of the right to political participation to challenge a government’s legal standing in the international system. see. shortly after his dismissal by President Truman.2007 Perpetual War 651 General.”81 Others. G. The paradoxical result would be to foist liberal-democratic values on populaces that do not share them. in which he compared the Japanese unfavorably with the United States: “Measured by the standards of modern civilization. at 424. 53/92. GAOR. For the latter. in When states Fail: causes anD conseQuences 153 (Robert I. To do so is to declare what amounts to a liberal-democratic jihad. Report of the Secretary-General. had doubts about US entanglements in the Philippines. Res. On the function of stakes. embRacing DeFeat: JaPan in the WaKe oF WoRlD WaR ii 550 (1999). is constitutive of society and therewith of international peace and security: “democratization gives people a stake in society. served as the first US governor of the island.” testified MacArthur in 1951. supra note 58. Agenda Item 164. FaiRness in int’l laW. A/RES/53/92 (1998). mentioned above and arguably the first US pro-democratic intervention under international law. the Japanese “would be like a boy of twelve as compared with our development of 45 years. Rotberg ed. thereby to rationalize otherwise impermissible implementation measures. between 1901 and 1904. Agenda Item 40(b).” This assessment is reminiscent of General MacArthur’s testimony before the US Congress. the democratic entitlement in international law is “requiring democratization to validate governance.A.”83 Peace and Sustainable Development in Africa. 83. with particular reference to the creation of states in international law. goveRnmental illegitimacy. supra note 78. ¶ 15.N.N. for unless people feel that they have a true stake in society lasting peace will not be possible. like Roth. 82. Its importance cannot be overstated. you. FRancK. Take the case of the Philippines. supra note 39. Doc. Roth. U. U.”79 How exactly does the democratic entitlement create “stakes” in society?80 According to Franck. ¶ 78. 58th Sess. 53rd Sess. see Jens Meierhenrich. supra note 30. On the track-record of the United Nations in underwriting democratization. the local population needed “the training of fifty or a hundred years before they shall ever realize what Anglo-Saxon liberty is.N. at 85.N. For as he concluded. On the implementation of the recommendations. the later US president who. John W. U... GAOR. most recently. Implementation of the Recommendations Contained in the Report of the Secretary-General on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa. 81. Secretary-General’s Report on Africa. A/58/352 (2003).

History has not been kind to those nations which ignored or flouted the rights and aspirations of their people. and which should yet be a framework within which the real powers of a nation might grow in the fullness of time.84 Or as the 2002 National Security Strategy stated. at 3. For empirical analyses. Consider in this context the possibility that examples of democratic war may have been driven. and notably during the US administration of Bush the Younger. Grenada could equally be explained as one of the last Cold-War battlefields. WheeleR. and its unintended consequences in the contemporary international system. Panama as an embarrassed George Bush [the Elder] dealing with a US ally turned drug smuggler. National Security Strategy 2002. Byers & Chesterman. To use them as the foundation of a new international legal order is to drape the arbitrary exercise of power by the sole remaining superpower in the robes of dubious legality. with different histories and cultures. To hold these three instances up as models of a new era of selfless intervention is to ignore the history of invasions that has characterized the relationship between the US and its southern neighbors. us inteRvention. and gather head with the growth of a mighty people. nicholas J. 86. supra note 62. 29 During most US administrations. Instead of seeing extant cases of pro-democratic intervention. You. by considerations other than the promotion of democratic ideology and the export of democratic institutions. cuts to the heart of pro-democratic intervention. supra note 68. at 722–23. and Haiti as a refugee crisis remarkable only as the first time the United States has sought Security Council authorization to intervene in the Western Hemisphere. in that far year 1787. gRay. the inteRnational Dimensions oF DemocRatization: euRoPe anD the ameRicas (Laurence Whitehead ed.85 This statement. The Ideals of America. and others like it. the expansion of liberty in the international system has been about the export of American democratic institutions. to give us a constitution that those heady little commonwealths could be persuaded to accept. supra note 66. facing different circumstances. rather than the export of democratic institutions per se. 2001). Wilson.86 84. the People. America’s constitution has served us well. saving stRangeRs: humanitaRian inteRvention in inteRnational society (2000). at 292. William i.. see smith. . Robinson. anD hegemony (1996). Many other nations.652 HUMAN RIGHTS QUARTERLY Vol. have successfully incorporated these core principles into their own systems of governance. PRomoting PolyaRchy: globalization. and will be driven. supra note 49. Wilson described the contribution of the founding fathers: The debt is the more incalculable which we owe to the little band of sagacious men who labored the summer through. 85. supra note 49.

J. supra note 53. at 835. Adam Roberts. The prohibition against the use of force in relations between states has been eroded beyond recognition. salvage.87 More than forty years later. see also aDam RobeRts. especially the super-Powers. from the nature of things. For a similar perspective. humanitaRian action in WaR: aiD. the rise of wars of “national liberation”.J. Louis Henkin remarked. 824 (1999). These three factors may. in the Nicaragua case.”88 Other international lawyers share these concerns. whatever be the present defects in international organization. 89. the ICJ. Kosovo and the Law of “Humanitarian Intervention. Nicaragua. and proceeded to tell us who killed it.” 93 am. in the context of NATO’s controversial Kosovo intervention. pathologist for the ills of the international body politic. For Franck’s argument. to keep alive at all cost the principal norm of international law in our time. but distinguish between unilateral and collective intervention in the pursuit of democratic governance. int’l l. 2. The ICJ. however. Corfu Channel. 88. while its conditions is grave indeed. 2(4): Dr. has pronounced the death of the heart of the United Nations Charter. 35 (9 Apr) (emphasis added). its maladies are not necessarily terminal. the rising threat of wars of total destruction. 3. is and should remain unlawful. at 544. Article 2(4). In my view. and deemed the international territorial administration a threat to international peace and security. given rise to most serious abuses and such as cannot. see Thomas Franck. Thomas Franck. the Corfu Channel case also remains instructive. Henkin. 1986 I.”89 The NATO 87. even for what the intervening state deems to be important humanitarian ends. Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States. 809 (1970). In response to attempts. be traced back to a single circumstance: the lack of congruence between the international legal norm of Article 2(4) and the perceived national interest of states. 1949 I. the increasing authoritarianism of regional systems dominated by a super-Power. There is yet time to prescribe. int’l l. Intervention is perhaps still less admissible in the particular form it would take here . J. PRotection anD imPaRtiality in a Policy vacuum (1996). Id. such as has. In considering justifications for the use of armed force by the United Kingdom. find a place in international law. 64 am. at a reinterpretation of Article 2(4). for. Consider in this vein also the riposte by Louis Henkin to Thomas Franck’s obituary on Art. in no uncertain terms. J. transplant. rejected the government’s line of defense: The Court can only regard the alleged right of intervention as the manifestation of a policy of force. “unilateral intervention. then and now. Article 2(4) lives and. principally by three factors: 1. the International Court of Justice (ICJ) came to the defense of Article 2(4) of the UN Charter. 133 (27 June). and might easily lead to perverting the administration of international justice itself. the death certificate is premature and the indictment for legicide must be redrawn to charge lesser though aggravated degrees of assault.C. in the past. Louis Henkin.C. NATO’s .2007 Perpetual War 653 Likewise many critics have likened the recent US intervention in Iraq to grave violations of international law. similarly refused to “contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. it would be reserved for the most powerful States.

speaks to a fundamental challenge in international law—the resolution of conflicting imperatives.654 HUMAN RIGHTS QUARTERLY Vol.90 It is possible to take the argument further. Even the willingness to risk lives of military forces. Waging War. the waging of international war is insufficient for making democracy work. Adam Roberts remarked that [t]he reluctance of NATO governments to risk the lives of their forces. ‘Humanitarian War’ over Kosovo. c. . mentioned above. Humanitarian War: Military Intervention and Human Rights. 41 suRvival 102 (1999). 56 int’l oRg. Edward D. 91. Institutional Strength. which formed the basis for a fledgling international territorial administration. or overthrow. Taking stock of the Kosovo intervention. In an aside. 69 int’l aFF. and War. The Road to Hell: A Critique of Humanitarian Intervention. supra note 89. Mansfield & Jack Snyder. The promotion of democratic ideology and the export of democratic institutions may require the international use of force in order to weaken.”92 90. NATO’s ‘Humanitarian War. suggest that the many lessons to be drawn from these events should be on a more modest scale than any grand general doctrines of humanitarian intervention. 29 intervention. Roberts. or the ability of developing a credible threat of land operations. “While the world would probably be more peaceful if all states were mature democracies. the increasing willingness of members of the international community to wage democratic war falsifies the monadic proposition of democratic peace theory. 429 (July 1993). the narrowness of the line between success and failure. the difficulty in developing a credible threat of land operations and. These pragmatic considerations ignore other dangers related to the international dimensions of democratization. the latter an advocate of conservative internationalism—“failed to anticipate the dangers of getting from here [authoritarianism] to there [democracy]. The creation or maintenance of democracy by fiat has traditionally led to international war.91 Yet as the case of contemporary Iraq attests. Adam Roberts. at 120.” the conventional wisdom of both US Presidents Bill Clinton and George W. an authoritarian or totalitarian regime. 92. Bush—the former a proponent of liberal internationalism. 10 (1993). Ways of War Pro-democratic intervention causes war in two ways: (1) by waging war and (2) by provoking war. Democratic Transitions. are insufficient to establish a doctrine of pro-democratic intervention. above all. It should be noted that the monadic variant of democratic peace theory has far fewer proponents than the dyadic variant.’ over Kosovo. Adam Roberts. 16 haRvaRD int’l Rev. 297 (2002). which holds that democracies are less war-prone than non-democracies regardless of the context.

including inordinate amounts of collateral damage. refused to send troops into Bosnia. In the case of the former Yugoslavia. Gary Bass points to the imperative to protect US soldiers: Most of the crucial decisions about what American soldiers could do to arrest Bosnia’s war criminal were made before the delegations arrived [at the peace conference] in Dayton. and (2) the US refusal to contribute to international justice. for instance. Explaining the United States’ unwillingness to detain individuals indicted by the International Criminal Tribunal for the Former Yugoslavia in The Hague for crimes against international law committed in the former Yugoslavia. later wrote: “No American President could defend to the American people the heavy sacrifice of lives it would cost to resolve this baffling conflict. The White House and the Pentagon were reluctant to make arrests. Two episodes stand out: (1) the US refusal to commit troops prior to the arrival of IFOR troops (NATO’s Implementation Force of the Dayton Agreement) on 16 December 1995. Apart from human losses. Id. relates to the loss of soldiers. 94. the hanD oF vengeance: the Politics oF WaR cRimes tRibunals 224 .94 In the case of the war in Iraq—regarded as democratic by some and despotic by others—the United States suffered an unexpected number of casualties in 2003 and 2004. stay (2000). Political losses can be transitory or permanent phenomena. at 239.” the intervention in Iraq was a “literal war. Clinton’s choice of a lift-and-strike policy had the advantage of not embroiling American soldiers in ground combat. the Clinton administration was more prudent than the Bush II administration when it came to protecting the lives of US soldiers in the pursuit of democratic war.” Notwithstanding an impressive arsenal of technological advances. As for the first episode.93 The administration was also extremely reluctant to get involved in the pursuit of international justice—in the eyes of many an important ingredient of democracy in international law. 93. Incidentally. gaRy Jonathan bass. If the intervention in Kosovo was a “virtual war. animated by a sense of how unpopular a vigorous Bosnia mission would be among most Americans. pro-democratic intervention during the Clinton administration was a half-hearted affair.2007 Perpetual War 655 The most immediate danger. chairman of the Joint Chiefs of Staff under Bush and then Clinton.” In 1993. Human losses often translate into political losses. the United States. the US-led campaign involved traditional warfare and inflicted traditional losses on all sides. casualties in international war generate additional losses for the intervening state. to the frustration of its NATO allies. from the perspective of an intervening state. Colin Powell.

DemocRacy anD FoReign Policy: the Fallacy oF Political Realism (1992). inteRnal WaR: PRoblems anD aPPRoaches (Harry Eckstein ed. “New” and “Old” Civil Wars: A Valid Distinction?. The Ontology of “Political Violence”: Action and Identity in Civil Wars. Douglas c. in this scenario. Steven R. Several scenarios are logically conceivable and empirically verifiable. 96. and the concomitant imperative of political survival. Siverson ed. see. Similarly. Stathis N.”97 In this scenario.. the Arusha Accords.95 They range from protest to resistance—at home and abroad. institutions. democracy-resisting forces may launch internal war against the intervening forces.. “threatened elites [what this article has termed democracy-resisting forces] are likely to have little confidence that a fully democratic regime could reliably guarantee to protect their interests after they surrender power. Siverson. FRom voting to violence: DemocRatization anD nationalist conFlict 37 (2000). intense armed violence broke out in a number of regions that had just begun to experiment with electoral democracy [i. democracy-demanding and democracy-imposing forces are likely to retaliate by extending an ongoing democratic war. Russell haRDin. democratic ideology]. 97. 98. First. not only failed to establish sustainable democratic institutions and democratic ideology. such as the former Yugoslavia. but paved the road to genocide. Critics of pro-democratic intervention have pointed out that newly democratizing states are often neither liberal nor peaceful. transitions from dictatorship to more pluralistic public political systems coincided with the rise of national independence movements. counting the Public in: PResiDents. JacK snyDeR. like the case of Vietnam. On internal war generally. the earliest phases of democratization have triggered some of the world’s bloodiest nationalist struggles. The case raises the issue of domestic audience costs in intervening states. War and the Survival of Political Leaders: A Comparative Study of Regime Types and Political Accountability. Kalyvas. Mansfield & Snyder. David. the Caucasus. Foyle. Democratic Transitions. whether from within or from without. 1964). anD FoReign Policy (1999). 1998). Bruce Bueno de Mesquite & Randolph M.e. The existence of divergent expectations about democracy’s function may. 1 PeRsPectives on Politics 475 (2003). 54 WoRlD Politics 99 (2001).e. democratic institutions] and more pluralist discourse [i. 29 They are largely driven by public opinion. one FoR all: the logic oF gRouP conFlict (1995).98 In Africa. in stRategic Politicians.. Provoking War. See also miRoslav nincic. spurring separatist warfare that often spilled across international borders. an internationally sponsored attempt at making democracy work in Rwanda. Stathis N. Reminiscent of the “violence-negotiation nexus” during the talks 95. 49 WoRlD Politics 552 (1997).656 HUMAN RIGHTS QUARTERLY Vol. anD FoReign Policy 255 (Randolph M. Public oPinion.. Internal War: Causes and Cures. .96 This is so because in the “barren and unpromising political landscape” in which democratization typically unfolds. In some cases. for example. Kalyvas. at 297. The case of contemporary Iraq. during the 1990s. supra note 92. spawn perpetual war—not perpetual peace. sheds light on this dynamic. Waging democratic war may heighten the necessity of further democratic war. Since the French Revolution. and Indonesia.

the founder of the CDR. at 82. had published “a violently muckracking [sic] pamphlet” against Habyarimana in 1988. Rev. violence became a “beyond-the-table” tool during the Arusha negotiations. It further exacerbated group polarization inside Rwanda. intRoDuction to RWanDan laW 259 (1997). the Arusha talks produced agreement on a Broad-Based Transitional Government (BBTG) and a Transitional National Assembly (TNA). Bruce Ackerman. On 30 October 1992. The New Separation of Powers. the 99. See Protocol of Agreement Between the Government 100. The anecdote underscores the immense audience costs that Habyarimana and his Arusha delegation faced at home. “The offensive certainly did confirm their strength: within some weeks of fighting the RPF had doubled the amount of territory under its control. claiming it was occasioned by the ‘recent massacres.2007 Perpetual War 657 between the apartheid government and the African National Congress at the Convention for a Democratic South Africa (CODESA). The final agreement included the protocol on the integration of armed forces. supra note 100. 113 haRv.100 “This civil violence in turn led to a renewal of the civil war: on 8 February 1993 the RPF launched a major offensive. Id. 101.”102 Yet the offensive had unintended consequences.103 After a temporary suspension of the peace talks. President Habyarimana encouraged the formation of self-defense units armed with traditional weapons. 46 WoRlD Politics 1 (1993). see Alfred Stepan & Cindy Skach. PeacemaKing in RWanDa: the Dynamics oF FailuRe 82 (2001). the RWanDan cRisis: histoRy oF a genociDe 173 (1995). The killings in Gisenyi and Ruhengeri préfectures claimed the lives of an estimated 300 Tutsi. Id. For seminal contributions to the debate over the possibilities—and limits—of constitutional design. held together by a parliamentary constitutional framework. Responding to the offensive on national radio and before military commanders. 104. Jones. Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism. géRaRD PRunieR.104 In conjunction. President Habyarimana signed the final agreement of the Arusha accords on 4 August 1993. 103.99 Within days of signing the protocol on the composition of the TNA. in William a. one of the most serious commitment problems. . Protocol of Agreement on Power-Sharing within the Framework of a Broad-Based Transitional Government between the Government of the Republic of Rwanda and the Rwandese Patriotic Front (30 Oct. alison Des FoRges. the Coalition pour la Défense de la République (CDR) and Mouvement Révolutionnaire National pour le Développement (MRND) rejected the agreement and organized demonstrations against the proposed peace in Gisenyi and Ruhengeri préfectures. Jean Shyirambere Barahinyura. which violated the N’sele ceasefire of July 1992. schabas & maRtin imbleau. foreshadowing things to come. at 128. It was designed to highlight the military superiority of the Rwandan Patriotic Army (RPA)—and consolidate the dramatic shift in the balance of power between the government and the Rwandan Patriotic Front (RPF). 633 (2000). destabilizing the entire Northwest of Rwanda.’”101 The successful military offensive. Jones. Incidentally. 1992). was motivated by more than the recent massacres. leave none to tell the stoRy: genociDe in RWanDa 110 (1999). bRuce D. l. at 83. 102.

8 (2d ed. committing to Peace: the successFul Resolution oF civil WaRs 152 (2002). 1998).105 Together with the Constitution of 1991 and two post-genocide agreements. Filip Reyntjens & Jan Gorus eds. see Aloys Muberanziza. 106. the military integration agreement called for a fifty-fifty division of the officer corps down to the level of field commander. “In Rwanda. Quelques réflexions sur la loi fondamentale actuelle à la veille de la mise en place d’une nouvelle constitution au Rwanda. Williamson. See Protocol of Agreement Between the Government of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandese Refugees and the Resettlement of Displaced Persons (9 June 1993) reprinted in 13 ReFugee suRv. integration of the two armies.incore. see James D. 7. For foundational work on commitment problems. Ethnic War as a Commitment Problem. WalteR. Commitment Problems and the Spread of Ethnic Conflict. Article Manuscript.. 5.658 HUMAN RIGHTS QUARTERLY Vol. 105. Lake & Donald Rothchild eds. For the complete text of the interim constitution (in the French original). oliveR e. the Arusha accords served as the constitutional law of Rwanda until the adoption of a new constitution by parliament and in a referendum on 23 April and 26 May 2003. Rationalist Explanations for War. Constitution-Making in Situations of Extreme Crisis: The Case of Rwanda and Burundi. 73 am. James Fearon. For a discussion. respectively. the economic institutions oF caPitalism: FiRms. Relational contRacting. 379. 29 accords contained elaborate provisions for power sharing in government. Filip Reyntjens. and how far down the military chain of command each side would be allowed to contribute officers. In the end. 40 J.ulst. i coDes et lois Du RWanDa 5 (2d ed..106 Yet implementation of the accords was slow in 1993. 22 int’l sec. maRKets. in the inteRnational sPReaD oF ethnic conFlict: FeaR. DiFFusion. Q. Commitment problems refer to “situations in which mutually preferable bargains are unattainable” because actors hold conflicting preferences over a substantive bargaining issue. 188 (1994). with the proviso that hierarchically consecutive positions in a given unit would be split. the government and the RPF would demobilize only if UN forces of Rwanda and the Rwandese Patriotic Front on the Integration of the Armed Forces of the Two Parties (3 Aug. 21 (1997). see Loi Fondamentale. Fearon. The government and RPF disagreed on two points. The accords culminated fourteen months of negotiations and mediation by the Tanzanian government. Rev. Credible Commitments: Using Hostages to Support Exchange. 519 (1983). 234 (1996). see Oliver E. Stephen John Stedman. and the United States. 49 int’l oRg. less intractable commitment problem—the repatriation of refugees—had been signed on 9 June 1993. 1993) available at http://www. . a detailed plan for the return of some soldiers to civilian life. Belgium. This undermined the tentative peace. The United Nations had agreed to oversee the accords’ implementation. See also James Fearon. For this definition of commitment problems. 31 May 2003. University of Chicago (June 1993). the Broad Based Transitional Government (BBTG). aFRican l. chs. Williamson. Spoiler Problems in Peace Processes. and United Nations assistance not forthcoming. but allowed the government to retain a 60 percent share of the troops. and the establishment of a coalition transition government. 5 Revue scientiFiQue Du DRoit 1 (2000).uk/services/cds/ agreements/pdf/rwan1. economist. A protocol on another. 381 (1995). the percentage of officers each side would contribute to the new army. procedures for democratization of Rwandan politics. econ. 1995). baRbaRa F. On the final constitution.pdf. see The Fear of Majority Rule.ac. 1987). anD escalation 107 (David A. reprinted in vol. in conjunction with the Organization of African Unity and the governments of France.

at 5. Jones. at 5.109 Christopher Clapham. and gave the courts the power to bring to book individuals in high positions who had misused their influence or state resources. supra note 105. worldview. the peace agreement wholly excluded the CDR. Rwanda: The Perils of Peacemaking. supra note 42. 90 (1994). at 217. 203 (1998). informed by a cogent analysis.”112 The Arusha Accords. committing to Peace: the successFul Resolution oF civil WaRs 154 (2002) (emphasis added). they had everything to lose. mahmooD mamDani. the Arusha accords also sought to separate the judiciary from the executive.” defined as “leaders and parties who believe that peace emerging from negotiations threatens their power.2007 Perpetual War 659 arrived on the ground and proved capable of fulfilling their declared mission.108 The Arusha Agreement was signed stillborn. nevertheless rank as a tragic failure in the promotion of democratic ideology and the export of democratic institutions by the international community. 108. and interests. supra note 100. Arming Genocide in Rwanda. baRbaRa F. Mamdani situates the genocide firmly in “the consequences of civil war and defeat. Id. mainly because it failed to take account of the extremist CDR. inclusive. even from the transitional government. 73 FoR. 109. 110. communicative. Stedman. Christopher Clapham. at 69.. supra note 105. “Rwandan authorities distributed large numbers of firearms to militia members and other supporters months before the genocide began. which did not result in pro-democratic intervention. Stephen D. many of whom cooperated beyond what might have been expected.”111 The genocide represented the continuation of politics by other means. 111. 193. Instead. reflects on the predicament of the CDR and the extremist factions in the other political parties: The “Hutu power” factions which controlled the existing Rwandan government effectively excluded themselves from the negotiations. Peace Res. either by including it or by containing it. indeed.”113 107. “the casualties of failed peace were infinitely higher than the casualties of war. Goose & Frank Smyth.” emphasizing the contingent nature of the atrocities. nativism. 86. from which they had nothing to gain. More generally. Brown ed. and again after most foreigners left Rwanda at the beginning of the carnage. and supported by a range of internal and external parties. an expert on Africa. . As the settlement eventually emerged. WalteR. aFF. anD the genociDe in RWanDa 211 (2001).” the peace negotiations in Tanzania served as a catalyst of genocide.”107 Although “deliberate. 112. 35 J. Strong in both the government and the army the extremists faced a double loss: of the government to the opposition and of the army to the RPF. Not only were they reduced to less than a quarter of the seats in a government over which they had hitherto exercised unchallenged control. In the end. inteRnational laW anD ethnic conFlict. When victims become KilleRs: colonialism. Stedman. 113.110 The CDR were “spoilers. 1996). and use violence to undermine attempts to achieve it. see the inteRnational Dimensions oF inteRnal conFlict (Michael E.

supra note 30. 21 int’l sec. “Thus. Jr. the losers may be seriously aggrieved. Sean M. Roth. the introduction of an external conception of democratic entitlement—as distinct from any solutions that may be worked out ad hoc by agreement among the potent conflicting forces within the state—is less likely to cure the conflict than to provide a rationale for partisan external involvement. 1996–1997). they can avoid debating in a common forum where ideas are publicly held up to rigorous scrutiny by competitors and expert evaluators. Nationalism and the Marketplace of Ideas. also questioning the imputed pacific consequences of democracy for international security: There is little reason to believe that participatory mechanisms complying with a given international standard [like the right to democratic governance] will be the solution to or the prophylactic against civil conflict. Where such mechanisms produce winners and losers. but by targeting niche markets. The link between democratic institutions and free debate. 115. Indeed. & Steven E. [t]he marketplace of ideas in newly democratizing states often mirrors that of a young.”114 As Jack Snyder and Karen Ballentine have found. FRom voting to violence. which has received some attention in international relations scholarship in the last decade.116 Let us now turn to the second scenario. When civil conflict is under way. The pro-democratic intervention in Afghanistan. the passionatelyheld aspirations of the majority may be frustrated.. 29 The new millennium saw further evidence of the dangers of democratization. Coté. Owen R. following the attacks of 11 September 2001. reprinted in nationalism anD ethnic conFlict 70 (Michael E. but in neighboring Pakistan as well. supra note 97. In a corrective to democratic peace theory. and oligopolistic elites exploit partial media monopolies in intense competition to win mass support in a segmented market. at 428. at 55. where the mechanisms instead form part of a consociational scheme. . Jack Snyder & Karen Ballentine. Roth concurs. poorly regulated industry.. most of them work in reverse. goveRnmental illegitimacy. just as it can from the absence of opportunities for participation. 116. Edward Mansfield and Jack Snyder have compared and contrasted the function of democracy for international security 114.660 HUMAN RIGHTS QUARTERLY Vol. has spurred insurgent warfare not only in that country. [Internal war] can result from either scenario. This kind of imperfectly competitive market may yield the worst of both worlds: elites are driven to compete for the mobilization of mass support. Miller eds. none of the mechanisms that produce the democratic peace among mature democracies operate in the same fashion in newly democratizing states. 5. 14 (1996). Lynn-Jones.115 This finding undermines the logic of democratic peace. competition is imperfect. snyDeR. Brown. as depicted in Figure 2 above. where barriers to entry are falling. is frequently underdeveloped or unavailable in newly democratizing countries.

Brown. 117. For counter evidence. science Rev. squaring the circle. Elites need to gain mass allies to defend their weakened positions. 121. Id. 41 J. as well as a series of illustrative case studies. Id. Democratization and the Danger of War.”119 This impasse makes it difficult “to form stable political coalitions with coherent policy platforms and sufficient support to stay in power.121 The interaction effects of these mechanisms prompt elites to resort to a “syndrome of expedients in their attempts to deal with the political impasse of democratization. Mansfield & Jack Snyder. supra note 117. and prestige strategies” of diversionary war. conFlict Res. at 79–80. Democratization and the Danger of War. in Michael E. Mansfield & Snyder. Miller eds. 119. are difficult to control. Democratization and War. 120.. Steven E. 118. A Tale of Two Democratic Peace Critiques. Ward & Kristian S. 74 FoR. 20 int’l sec. which is said to breed “short-run thinking and reckless policymaking that lead to war:” (1) a widening of the political spectrum. unstable domestic coalitions. Edward D. It brings new social groups and classes onto the political stage. Political leaders. finding no way to reconcile incompatible interests. Thompson & Richard Tucker. 122. So are the powerful remnants of the old order—the military.”120 Four mechanisms are at the heart of this impasse. (2) inflexible interests and short time horizons.117 The principal focus of this research has been the link between democratization and international war. 92 am. Michael D. Both the newly ambitious elites and the embattled old ruling groups often use appeals to nationalism to stay astride their unmanageable political coalitions. once mobilized by passionate appeals. at 322–27. Id. and (4) a weakening of central authority. as opposed to internal war. Pol. the focus of the preceding section.122 The complete argument can be summarized as follows: Democratization typically creates a syndrome of weak central authority. resort to shortsighted bargains or reckless gambles in order to maintain their governing coalitions. supra note 7. Gleditsch. Democratizing for Peace. supra note 117. Edward D. Democratization and War. institutional weakness. 428 (1997). (3) competitive mass mobilization. at 301. and high-energy mass politics. at 322. for example—which promote militarism because it strengthens them institutionally. 5 (1995). Sean M. they rouse the masses with nationalist propaganda but find that their mass allies. Lynn-Jones. Mansfield & Jack Snyder. at 327–30. the authors have found that large-scale social change.2007 Perpetual War 661 in consolidated settings and in changing settings. aFF. see William R. 51 (1998). As Mansfield and Snyder claim. and threatened elite interests “produce a political impasse along the route toward democracy. 79 (1995). Needing public support. Debating the DemocRatic Peace .” including “logrolling. Mansfield & Snyder. .”118 On the basis of statistical evidence covering the period 1815–1980. ”formerly authoritarian states where democratic participation is on the rise are more likely to fight wars than are stable democracies or autocracies.

is war. but for those that do the resulting political dynamic creates conditions that encourage hostilities. provides little comfort to those who might face a heightened risk of war in the short run. even in the short term.126 Turning to the issue of intensity. stepping on the gas. and fighting over which passenger will be in the driver’s seat. for example. at 60. supra note 117. The result. Ward and Gleditsch claim that “[s]mooth monotonic transitions are associated with the least risk and greatest benefit.123 Not surprisingly. often.”127 This finding. Id. In the face of this institutional 123. supra note 117. Pushing nuclear-armed great powers like Russia or China toward democratization is like spinning a roulette wheel: many of the outcomes are undesirable.124 Critics have questioned both the case selection as well as the statistical results underlying the Mansfield and Snyder argument. It supports the proposition that the danger of war is a structured contingency. Democratizing for Peace. at 88–89. at 80.” noting that “the stylized facts are quite complicated and do not necessarily lead to the conclusion that newly emergent democracies are war prone. at every point along the way as well as at the end points. Democratization and War. Michael Ward and Kristian Gleditsch. Mansfield and Snyder warn against the indiscriminate promotion of democratic ideology and the promotion of democratic institutions: The expectation that the spread of democracy will probably contribute to peace in the long run. it does decrease monotonically. Mansfield & Snyder. so that over the entire range of democracy minus autocracy values.”125 They propose instead that “[s]mooth transitions tend to be associated with a considerably lower risk” of war in democratization: Although the probability of war involvement does not decrease linearly. have the greatest risk. Reversals. once new democracies mature. emphasizing in particular the issue of democracy’s intensity (in addition to nature and direction). question whether the illustrative case studies used “are typical at all. which borders on the tautological. there is a reduction of about 50%. During the democratic transition. 127.662 HUMAN RIGHTS QUARTERLY Vol. Id. 125. Governing a society that is democratizing is like driving a car while throwing away the steering wheel. Id. at 58. 124. Ward & Gleditsch. 29 This is particularly true because democratization weakens the central government’s ability to keep policy coherent and consistent. . at 59. is commensurable with Mansfield and Snyder’s findings. 126. “Not all newly democratizing states suffer from institutional weakness. there is an attendant reduction in the probability of a polity being at war.

noting that just as individuals and groups within the state define themselves in terms what they are not. which draws centrally upon the old institutionalism of Samuel Huntington’s Political Order in Changing Societies. 131. . with particular reference to the promotion of democratic ideology in. Yet this scholarship. who also had his doubts about the democratic peace. Kant proposed a league of monarchs to adjust differences between states. at 235. then. internal and otherwise. dEMocRATIc WRoNGS This part turns from international theory to international practice. the PhilosoPhy oF Right 295(T. See also samuel P. supra note 5. enter George Wilhelm Friedrich Hegel. and which underpins the scholarship on democratic rights in international law. supra note 92. opposite “thing” had been identified. and the twins are symbiotic. and the scholarship of Mansfield and Snyder is not beyond reproach. and individuality essentially implies negation.”128 Democratization does not always produce war. 1967). libeRal Peace. the impetus toward war. and 128.. political leaders rely on expedient strategies to cope with the political impasse of democratization. as if “the [democratic] impetus toward peace has a twin. Democratic Transitions. and the Holy Alliance was meant to be a league of much the same kind. libeRal WaR. 130. If the pacific union [predicted by Kant] were to appear. a group of states must have an “other” against which to define itself. Mansfield & Snyder. Take away the other—the existence of illiberalism—and [democracts] would not be able to define themselves or identify one another. It reflects on the legacies of pro-democratic intervention in the international system. Hence even if a number of states make themselves into a family. Lastly. at 301. this group as an individual must engender an opposite and create an enemy. provides an important corrective to the triumphalism that has accompanied the debate over the democratic peace. the German philosopher. huntington. F. Id. Knox trans.130 It appears. W. it would only be because another. M.”131 V. 129. But the state is an individual. oWen iv. Hegel was far less enthusiastic than Kant (and Franck and Reisman as it turns out) about the function of democracy in international law: Perpetual peace is often advocated as an ideal towards which humanity should strive.129 Owen elaborates. hegel. Political oRDeR in changing societies (1968). g.2007 Perpetual War 663 deficit. With that end in view.

See David Collier & Steven Levitsky. with the public goods of participation and contestation. Rev. See PRosPects FoR DemocRacy: noRth. FRancK. The attributes of participation and contestation. of course. 537 (1999). and its supposedly democratic imperative. good reason to believe the contrary. East.135 If the West cannot agree on the meaning of democracy. supra note 36. and is not?134 Several scholars have alerted us in recent years to “democracy with adjectives.” See RobeRt a. . first. see Philippe C. the emPoWeReD selF. 29 the export of democratic institutions to. fair) inevitably convey different meanings in various political cultures but. The analysis to this point has shown why proponents of the right to democratic governance presuppose “that promotion of an international legal right to democracy would serve democratic ends. at 264. 133. 49 WoRlD Pol. 2 ann. elections. West (David Held ed. in particular Article 73. or what he calls “polyarchy. and Is Not. Democracy and Dichotomies: A Pragmatic Approach to Choices about Concepts.”133 Why should we expect anything else from hurried democratization? A related question arises. east. at 420. There is. . the argument for bringing democracy back in. in the Western hemisphere alone. “hurried decolonization produced indigenous authoritarian or totalitarian systems of governance under cover of rapid social and economic modernization and the preservation of national unity. divergence Recall in this context. supra note 30. Plattner eds. David Collier & Robert Adcock. sci. at least in part. evoke an amply demonstrable degree of convergent expectations. Dahl. Franck’s attempt to ground the—ostensibly— emerging right to democratic governance in the Charter of the United Nations. Democracy with Adjectives: Conceptual Innovation in Comparative Research. Iraq is the latest case in the international administration of war-torn territories. Pol. free. 430 (1997). and illustrative of the costs of making democracy work in the international system. and South to embrace the promotion of its ideology and the export of its institutions?136 Franck anticipated this criticism: The terms [of democracy] (e. how can we expect North. owe to Robert Dahl’s famous conceptualization of democracy. Roth. .”132 A. more often than not.. 1996). contemporary Iraq. For an introductory discussion. is revealing. 135.664 HUMAN RIGHTS QUARTERLY Vol.” emphasizing the plethora of meanings that are associated. Who is to say that democracy will be a guarantor of public participation? And who is to determine what democracy is. however. For as Franck concedes. It undermines. They crisscross sociocultural and political boundaries. in the global ResuRgence oF DemocRacy 49 (Larry Diamond & Marc F. remarkably. The reference to decolonization. 136. PolyaRchy: PaRticiPation anD oPPosition 4–9 (1971). goveRnmental illegitimacy. What Democracy Is . The entitlement now aborning is widely enough un- 132.. 1993). south.g. Schmitter & Terry Lynn Karl. 134.

but stress the primacy of spiritual and economic well-being to political rights and the quality of communal life to individual life-choices. in DemocRatic goveRnance anD inteRnational laW.138 Some observers note that [s]ubjects have frequently. social movements anD thiRD WoRlD Resistance (2003). political parties. see also balaKRishnan RaJagoPal. and media. ethnic strife or national disintegration. and so on.” See Susan Marks. supra note 30. at 90.137 Rather than conveying “an amply demonstrable degree of convergent expectations. Issues of citizenship. distributive justice through the disenfranchisement of entrenched social élites. democracy promotion efforts have consisted often of strengthening state institutions (parliaments). supra note 138.” however. goveRnmental illegitimacy. The democratic entitlement thesis accords such views no weight. at 424. democracy is made to appear to have nowhere further to go. adorned with whatever adjective. at 438. [the] definition of the substantive conception as “a core of political rights”). at 259. at 559.2007 Perpetual War 665 derstood to be almost universally celebrated. Franck.140 Continues Rajagopal.” Both capture democracy mainly as having to do with the realization of individual rights within a political realm (cf. RaJagoPal. . accountability. however widely they may be held. and equality. and western-style representative institutions—in short the normative and institutional framework of the existence of classic western liberal rights. is suggestive of divergent expectations about the function of democracy in the international system. 139. in DemocRatic goveRnance anD inteRnational laW. For an analysis of related themes.139 Consider in this context also Balakrishnan Rajagopal’s recent assessment of attempts at making democracy work in international law: These efforts have been ideologically biased by their formalistic definition of democracy that has tended to emphasize voting rights. to the neglect of what happens in extra-institutional arenas. inteRnational laW FRom beloW: DeveloPment. International Law. Inasmuch as elections stand at the narrative’s climax [in the literature on the right to democratic governance]. supra note 3. It is welcomed from Malagache to Mongolia. The procedural and substantive conceptions [put forth in the literature on the right to democratic governance] do not exhaust the meaning of “democracy. regarded their authoritarian and dictatorial regimes as securing very real benefits: protection against chaos. Susan Marks finds omission closer to the heart of what Rajagopal calls “formalistic definitions of democracy. in human history. Democratic Governance. 138. Thus. Which Democracy?. Both also leave aside powerful aspirations that are neither about procedural correctness nor about political participation. see Martti Koskenniemi. For a concurring opinion. resistance to foreign penetration and domination. or even in other institutional arenas such as workplaces. Democracy and the End of History. Roth.. supra note 30. 140. the growing resistance to democracy. and their respective significance and relative importance—along with other issues at the heart of democratic debate—are thus removed from view. Whose Intolerance. supra note 3. 137.

and the constitution of civil society (national or global). If democracy is thereby understood as a contingent value. libeRal Peace.”144 The stirrings in the Middle East following the 2002 US-led intervention in Iraq underline the validity of this insight. especially since “there are also areas of the world that explicitly reject” democracy “as decadent. at 259 (emphasis added).666 HUMAN RIGHTS QUARTERLY Vol. its definitions of civil society have tended to confine it to a narrow negativist view of non-governmental arena (consisting of markets and NGOs) excluding certain economic actors (such as trade unions) or non-institutionalized collective action in the form of social movements.g. 146. and its adverse effects for many parts of the developing world. It is important to remember that democracy “stirs up new dissatisfactions. the rise of communitarian critiques of democracy in the advanced industrialized countries is indicative of “the weakness of liberalism within its own citadels. PeteR evans. Id. RaJagoPal. political economy and resource allocation. supra note 35. 144. materialistic. However.147 141. nor does he supply data regarding the “demonstrable degree of convergent expectations.”146 One need not be an adherent of cultural relativism to appreciate the costs of dependent democratization. supra note 138. 145. his argument is wanting. at 21 (emphasis added). 147. e. most notably many countries dominated by Islam. See.142 This brings us to the wrong of dependent democratization. 29 The track record of international relations [as opposed to international law] is somewhat different. Introduction. costs that will invariably grow with an expansion in the international administration of war-torn territories. supra note 30. dependence Franck does not substantiate his defense of democracy as an emergent right under international law.141 In light of this admittedly tentative data. libeRal WaR. and impious. Franck. anD local caPital in bRazil . Id. then a legal rule embodying democratic principles will suffer from perpetual contingency as well. and solidified through institutional and legal reform. My coinage of the label dependent democratization harks back to the era of modernization. 142. even as it eliminates old ones. at 234.”143 Absent such evidence. where democracy is increasingly seen as critical to the maintenance of the world order through the ‘democratic peace’ thesis. b. at 90. Democratic Governance. [t]he value of enforcing the [democratic] entitlement as a legal rule becomes subject to the outcome of discussions involving highly complex issues of local culture.”145 Furthermore. such as alienation from community and loss of meaning. 143. state. Fox & Roth. supra note 5.. oWen iv. DePenDent DeveloPment: the alliance oF multinational.

Id. legitimate as well as compatible with the principles of collective security in international customary law. see geoRg nolte. “It is unclear . at 299. Wippman similarly finds that “it is at best unclear whether a de jure government overthrown in violation of domestic constitutional law may authorize external intervention to reestablish its authority. in enFoRcing RestRaint: collective inteRvention in inteRnal conFlicts 119. . under certain circumstances.150 The burden of proof in these instances lies with those who 148. Dependent State Formation and Third World Militarization. int’l stuD. appears to have been the product of political ideological principles that served as guides for the identification of international foes and friends—just not in the sense predicted by democratic peace theory—and their adherents in international law. regularly results in the commission of democratic wrongs. 149. eingReiFen auF einlaDung: zuR völKeRRechtlichen zulässigKeit Des einsatzes FRemDeR tRuPPen im inteRnen KonFliKt auF einlaDung DeR RegieRung (1999). For the contrary view that pro-democratic intervention by invitation (Einladung) is. supra note 49. rest on shaky foundations.” reconstructed by Bob Woodward and others. FeRnanDo henRiQue caRDoso & enzo Faletto.. in Paths to Peace: is DemocRacy the ansWeR? 501 (Miriam Fendius Elman ed. . there is the sanctity of sovereignty that is frequently violated in instances of pro-democratic intervention. 150.2007 Perpetual War 667 With regard to the demands of international policy. Testing the Democratic Peace Theory. 19 Rev. 139 (Lori F. The Haitian Crisis and the OAS Response: A Test of Effectiveness in Protecting Democracy. It also implies that all democracies will use political ideological principles as guides for identifying international friends and foes. 1993).” See Domingo Acevedo. but not necessarily more democracies that are like the United States. The democratic peace theory [not unlike the literature on the right to democratic governance] incorrectly lumps disparate systems of government into a catch-all category. Damrosch ed. Miriam Fendius Elman.. c. 2000). (1979).” See Wippman.149 These claims. 321 (1993). The US “plan of attack.”148 In other words. at 501–02. as this article contends. At the macro-level. Pro-democratic intervention by invitation may not necessarily heal the violation of sovereignty and the concomitant right of non-intervention. . whether they are located in the former Yugoslavia or the former Zaire. See also Alexander Wendt & Michael Barnett. As Domingo Acevedo cautions. DePenDency anD DeveloPment in latin ameRica (1971). deviance The imposition of democratic rights in war-torn territories. democracies (and nondemocracies) need to be disaggregated. it is important to recognize “that promoting democracy abroad and exporting US-style democracy are two separate agendas—the United States’ policy of democratic enlargement may lead to more democracies. whether a de jure government that has only formal but not actual power may invite foreign ‘military intervention’ for the purpose of removing a de facto regime.

so as to overcome the resistance to change inherent in the treaty (as a set of established. moreover. The “systematic and illegal abuse” 151. supra note 49. Byers & Chesterman. on the one hand.668 HUMAN RIGHTS QUARTERLY Vol. be very sure that the norms. The imposition of democratic rights can also result in the commission of democratic wrongs at the micro-level. the People. KRasneR. as well as from those belligerent opposition factions that seek to overthrow “freely and fairly elected” governments.152 We have already witnessed these democratic wrongs in the case of contemporary Iraq. soveReignty: oRganizeD hyPocRisy (1999). so long as those forces’ violation of liberal-democratic norms could be established. Powerful states would possess a license to intervene against forces that obstruct their economic or geostrategic interests. Yet consider the argument and evidence in stePhen D. legally binding obligations backed up by the principle of pacta sunt servanda) and its ratifications (as individual instances of State practice and evidence of opinio juris for the purposes of customary international law). Id. 29 seek to alter the foundations of international law. 152.. New. [I]nsofar as the democratic entitlement would withdraw the protection of nonintervention norms from those governments that overturn or refuse to implement liberal-democratic processes. or refined. supra note 30. But there is a distinction between non-compliance. We should. as presently articulated are so irredeemably inappropriate to the factual realities that we do indeed wish to undermine them. the results are likely to be perverse. and interpretation infra legem to achieve certain outcomes.e. widespread. You. I believe that the application of Article 2(4) and Article 51 has been very unsatisfactory. a total of six (or ten or twelve) interventions of this kind in a half century of State practice and opinio juris in support of non-intervention would not a new rule of international law make. Even if they [pro-democratic interventions] had been conducted with the felt and expressed purpose of developing a right to self-help. As Michael Byers and Simon Chesterman have noted. norms often emerge from a process of widespread non-compliance with old norms. Rosalyn higgins. But I am not yet convinced that they have no useful purpose to perform or that unilateral outcome-directed action without reference to common norms is not dangerous. the amount of State practice and evidence of opinio juris necessary to change any rule of customary international law existing parallel to those treaty rules—and thus.151 And as Roth elaborates. at 425–26. the treaty rules themselves—would have to be substantial. And we should not pretend that they are the same. . [I]n a situation where an almost universally ratified treaty [i. if it is felt that the erstwhile articulation of norms no longer serves community interests. goveRnmental illegitimacy. arguably. The normal processes for change will include non-compliance. This burden is considerable. at 267. Rosalyn Higgins holds the middle ground in the doctrinal debate over the function of Article 2(4): My own position is that. and more or less consistent. at 266. then those norms can properly be subjected to processes for change. PRoblems anD PRocess: inteRnational laW anD hoW We use it 252–53 (1994). on the other. Roth. the Charter of the United Nations] provides rules that prohibit the unilateral use of force except in self-defense.

available at news. Article 15–6 Investigation of the 800th Military Police Brigade 50 (2004). in part. Can any Iraqi now be expected to believe US intentions are good? A more insulting. supra note 36. Democracy and Collective Bads.”155 Likewise. at 5. a war of images. 156. if the air of my city has been polluted with harmful chemicals.bbc. 24 May 2004.uk/1/hi/world/americas/3684825. neW yoRKeR. Report Into Baghdad Prison Abuse. Hersh. if pro-democratic intervention has resulted in the destruction of my city. I cannot readily exclude myself from that devastation while living in the city. or both. 5 May 2004. 154.stm. 1999). “A public bad is contrariwise. for example in the form of insurgence or terrorism. Julian Borger. Jackie Spinner. democracy will turn from a desirable public good into a dispensable public bad. the Abu Ghraib scandal represents a profound and perhaps irreversible defeat for the United States. For example. This. Wash. See also Seymour M. if pro-democratic intervention has resulted in the rise of resistance to democracy in my country. As one editorial put it: Given that the war in Iraq is. a bad from which individuals cannot exclude themselves. inflammatory message to the world’s Muslims and Arabs—and a more effective recruiting tool for groups like Al Qaeda—can scarcely be imagined. Soldier: Unit’s Role Was to Break Down Prisoners. FRancK. The Horror of Abu Ghraib. 3 May 2004. US Officer Says Prison Guards Tried to Cover Up Abuse of Iraqi Prisoners. bbc neWs.2007 Perpetual War 669 of detainees during the US occupation of Iraq—which Major General Antonio Taguba in an US Army report deemed “grave breaches of international law”—are but the most notorious democratic wrongs committed under international law. is a fairly accurate depiction of everyday life in the aftermath of prodemocratic intervention. at 272. United States Army.”156 153. Paul Samuelson and Mancur Olson famously defined a public good as a good from whose enjoyment individuals cannot be excluded. at A1. I cannot readily exclude myself from the carnage. Reservist Tells of Orders From Intelligence Officers (soldier says role was to “make it hell” for prisoners). 155. nation. at 42. the emPoWeReD selF. Or. It is therefore indispensable that the “deployment of military means to enforce democracy occurs only in circumstances that do not constitute disguised colonialism. Russell Hardin. 10 May 2004. 8 May 2004.153 The violations of international humanitarian law during the US occupation are examples of democracy’s propensity for deviance.154 If the balance of democratic rights to democratic wrongs in the course of pro-democratic intervention tilts in favor of the latter. in DemocRacy’s eDges 67 (Ian Shapiro & Casiano Hacker-Cordón eds. Torture at Abu Ghraib.. . of course. guaRDian. at 3. Post.co. I cannot readily exclude myself from that pollution while living in the city.

iraqbodycount. The Body Count. Reisman. 2004. 29 d. 161.bbc. The case of Iraq. Despite a decrease in the number of daily attacks on US forces from forty to twenty-three in the period September 2003–January 2004. defiance The commission of democratic wrongs has not been limited to the case of contemporary Iraq. or the integrity of the elections is doubtful. supra note 49. or a civil insurrection has left diverse groups vying for power. 158. except the first three).php#sources. For as she remarked prior to the terrorist attacks of 11 September 2001. supra note 14. see www. “if the United States actively attempts to export democracy abroad. up from 1. According to the British website IraqBodyCount. Consider in this context also Michael Reisman’s reservations about pro-democratic intervention. no one can be sure that the unilateral intervener from the outside is implementing popular wishes. combatants and otherwise. the intervener will be shaping them. it seems destined to become embroiled in the intense struggles that positive political change precipitates. It has accompanied almost every pro-democratic intervention in the last twenty years. at 875 (emphasis added. Id. by 15 May 2004.65 dead soldiers per day. US fatalities in the same period averaged 1. 160. available at news. bbc neWs.uk. To varying extents.”161 Oscar Schachter’s cautionary note. For a description of the methodology. The data are based on a collation of reported figures of civilian deaths. 159. at 114. especially about what has become known as “the electoral fallacy”: When the internationally supervised elections result in an absence of consensus on who should govern.005 civilians. or there have been no elections. Sovereignty and Human Rights in Contemporary International Law. at 113.148 and 11.160 Gowa’s scholarship has been prescient. goWa. 12 Feb. Many subjects of pro-democratic intervention have responded to the arrival of international humanitarianism with defiance.co.org/background.159 What are the implications of this for international law and international practice? Joanne Gowa’s prediction.” is still of relevance today: “This is 157.158 In light of this tentative data. org.157 The pro-democratic intervention has caused the death of many more Iraqis. the US-led intervention had.1. is the latest case in point. penned prior to the “war on terrorism. . where the US-led Coalition Provisional Authority (CPA) administered a transition from authoritarianism to democracy for twelve months between July 2003 and June 2004. that “a more traditional strategy based on building common interests might make the United States better off than a foreign policy designed to construct democracies abroad.” rings true in the wake of recent attempts at pro-democratic intervention. killed between 9. it is not surprising that many Iraqi citizens have come to resent—and resist—the imposition of democracy by force.670 HUMAN RIGHTS QUARTERLY Vol.

What Koskenniemi prescribes. and when addressed. The world will not be made safe for democracy through new wars or invasions of the weak by the strong. “is prohibited by the relevant legal instruments. but its realization in the international system has had consequences neither anticipated—nor intended—by its proponents. for instance. The doctrines and practices of the participants to social conflict will need to be addressed directly. it may not be unwise for the United States. United States. The Legality of Pro-Democratic Invasion. to promote what Justice Brandeis in Olmstead v. . at 440. 163. supra note 138.” max WebeR. Koskenniemi. 438. International law and practice require more sophisticated knowledge than currently exists in national governments and international organizations of the limits of making democracy work in the international system. holding that the use of force in international law. makes necessary the development of what might be called democratic war theory. in other words. at 253 (emphasis added).2007 Perpetual War 671 surely not the time for international lawyers to weaken the principal normative restraint against the use of force. As Koskenniemi writes As long as international lawyers look at the conflict between secular authorities and religious fundamentalists.. as a general “human rights” or “democracy” matter. omission or acquiescence. The ascendancy of democracy by force. is an interpretive sociology of international law. It has reflected on the changing character of war in the international system. with few exceptions. dissenting). 78 am. and that the common good is best served by terming the indirect use of force unlawful. We shall remain outsiders with a political bias couched in apparently neutral or universal language. 650 (1984). We shall speak of ‘action’ insofar as the acting individual attaches a subjective meaning to his behavior—be it overt or covert.164 While international lawyers. imperialism at worst. supra note 151. indirect and otherwise. and the international community at large.” higgins. This necessitates. coNcLUSIoN This article has inquired into the philosophical and pragmatic foundations of international law.. and [pro-democratic] intervention will appear ineffective at best.”163 VI. Oscar Schachter. a better understanding. Action is ‘social’ insofar as its subjective meaning takes account of the behavior of others and is thereby oriented in its course. regardless of the objectives in a particular case. of democracy’s meaning in the international system. US termed “the right to be let alone.S. 162. For Max Weber. trans. Ephraim Fischoff. understanding social events entailed “the interpretative understanding of social action and thereby with a causal explanation of its course and consequences. int’l l. and raised questions about the promise of pro-democratic intervention.”162 The future function of democracy in international law is uncertain. we are unable to reach [and teach] the historical. in the Weberian sense. economy anD society: an outline oF inteRPRetive sociology 4 (Guenther Roth & Claus Wittich eds. moral and political core of the conflict. The right to democratic governance is deserving of international recognition. 478 (1928)(Brandeis. 645. among other things. The relevance for the theory and practice of international law is significant. Such is the nucleus of Weber’s interpretative sociology (verstehende Soziologie). 164. J. 1978). and its evolution from Grenada to Iraq. 277 U. Higgins concurs. J. Olmstead v. In the current international system.. the assumption should not be that we remain unmoved by them.

and pointers from comparative politics. Mansfield & Syder. DaviD KenneDy. as described in this article. the DaRK siDes oF viRtue: Reassessing inteRnational humanitaRianism (2004). Democratization and the Danger of War. and its unexpected consequences for international practice. that its institutional complements necessarily reflect the huge diversity of social circumstances to which it is applied. for example. of pro-democratic intervention in the wake of the terrorist attacks of 11 September 2001. . however. demand a pragmatic. foreign policy makers jettison a commitment to democracy.169 The problem. 166.S. 167. and the 2002 intervention in Iraq has demonstrated.672 HUMAN RIGHTS QUARTERLY Vol. amongst other things. The new humanitarianism. assessment of democracy’s value in international law. According to former United Nations Secretary-General Boutros Boutros-Ghali.165 The exorbitant costs. at 566 (emphases added). DemocRacy’s eDges (Ian Shapiro & Casiano Hacker-Cordón eds.. supra note 148.168 One group of scholars recently concluded as follows: The idea of a world where democracy brings peace has a great deal of intuitive appeal. But .” To characterize democracy as an ideal is to highlight that it is an engine of criticism and change. Marks. nor do we reject the claim that domestic norms and institutions can affect both foreign policy outcomes and the ways in which states identify external threats. supra note 9 at 232. 1999). 169. and in other recent campaigns across the globe. For concerns regarding the establishment of democracy in municipal law.. supra note 77. rather than a philosophical.166 Is democracy really the answer? Any analysis of democracy’s value in international law is faced with a paradox of international politics. 29 have heralded democracy’s virtues. Elman. the idea of a democratic peace should not be used as an excuse for aggression against nondemocracies. agenDa FoR DemocRatization. Mansfield & Snyder. monetary and otherwise. We do not recommend that U. lies deeper. supra note 92. Marks. . is at least as dysfunctional in international law as the new imperialism. The quote is from Doyle. democracy is today an “ideal that belongs to all humanity. the imposition of democracy in international law can have unintended consequences. 1999). supra note 117. To label it as the property of all humanity is to recall. Whereas the liberal internationalism pursued by former US President Woodrow Wilson and others has been deficient. at 498. Its solution demands more than deconstructing colonialism in disguise. supra note 77. Democratic Transitions. Bush has proved excessive in promoting and exporting democracy in the international system. Should international law seek to vindicate efforts animated by such an ideal. “in preserving its basic preconditions under changing international circumstances. . necessarily at odds with prevailing realities. see DemocRacy’s value (Ian Shapiro & Casiano Hacker-Cordón eds. See also boutRos-ghali. agenDa FoR Peace. illuminates the democratic bias inherent in international organizations.” the conservative internationalism of George W. Liberal Legacies. they have largely ignored democracy’s vices. and particularly in supporting the liberal character of its constituent states. 168. As David Kennedy writes: 165. especially in the interwar Europe of the twentieth century. boutRos-ghali.167 As an increasing number of observers have argued. then a framework of ideas that posits liberal institutions as history’s end scarcely seems an adequate basis on which to proceed. supra note 140.

170 For the reasons outlined in this article. This necessitates advances in the cultural study of international law. however defined.2007 Perpetual War 673 Aspiring to good. supra note 168. can underwrite democratic war—rather than democratic peace. rather than facing the darker consequences of humanitarian work. at 428. When things do go wrong. but a dangerous one. the cultuRal stuDy oF laW: ReconstRucting legal scholaRshiP (1999). Kahn. if not handled with care. For the argument from comparative law. “[a] new legitimism. and policies of perpetual peace become prescriptions for perpetual war. truly aspires to realize the Kantian imperative of perpetual peace. 172. 170. however purportedly ‘democratic. .’ would not be a progressive development. we too often simply redouble our efforts and intensify our condemnation of whatever other forces we can find to hold responsible. supra note 30. it must enshrine democratic rights in unfamiliar cultures with more circumspection. goveRnmental illegitimacy.172 Otherwise democratic rights become democratic wrongs. Roth. see Paul W. humanitarians too often mute awareness that their best ideas can have bad consequences. 171.”171 International lawyers have insufficiently appreciated the fact that democracy. If the international community. KenneDy. at 327.