How International Law Can Restore Democracy

IWMPost Article

Since the turn of the millennium, democracy has weakened around the world and some democracies have failed. How can robust democracy be bolstered without falling victim to accusations of partisan bias and tit-for-tat retaliation? The answer lies in taking international law seriously.

In 1989, the participants in the Hungarian Round Table Talks inadvertently drafted a new constitution. The communist regime’s Justice Ministry came to the talks determined to use the opportunity to revise the 1949 Stalinist standard-issue text but the self-appointed democratic opposition was determined to postpone constitutional drafting until after an independent elected government could legitimate the process. In the end, they compromised and produced a massive amendment to the 1949 constitution, approved by the outgoing communist parliament on October 23, 1989, two weeks before the Berlin Wall fell.

International law made it possible to break the deadlock. The delegation from the justice ministry persuaded the opposition to cross out the parts of the 1949 constitution that were clearly not going to survive a democratic transition. Both parties then agreed that the now-nearly-empty text could be filled by copy-pasting the language from the International Covenant on Civil and Political Rights and from the International Covenant on Economic, Social and Cultural Rights directly into the constitution. Once that was done, the constitution became “worth defending,” as those I interviewed about this process back in the 1990s agreed. The deal was sealed by the creation of a Constitutional Court with the power to ensure that these rights would be enforced. The Constitutional Court then forged the path that the new governments traveled on their way to making Hungary a vibrant democracy for two decades.

Fast forward to 2022, the year that the parliamentary elections in Hungary saw the entire diverse opposition join forces to try to oust Prime Minister Viktor Orbán who was seeking a fourth consecutive term in government for his Fidesz party. Since coming to power in 2010, Orbán has captured virtually all independent political institutions in Hungary—first and foremost the Constitutional Court, which now acquiesces in autocracy. He rewrote the constitution and all of the key laws, including the election laws that guarantee his endless stay in power. Virtually all democracy raters—and the European Parliament—agree that Hungary is no longer a democracy. Given how the election rules were rigged by 2022, it was always a long shot to think that the opposition could win. But they needed a plan to govern in order to have a chance. As in 1989, unlikely partners agreed that international law could unite them around common principles.

A team of lawyers, led by Zoltán Fleck, drafted an opposition plan to restore Hungarian democracy. The core of the plan involved bringing Hungary into compliance with European Union law and the European Convention on Human Rights (ECHR). In 1989, the country was on the outside looking into the EU and the Council of Europe. In 2022, it was inside and governed by the rules of those exclusive clubs. Enforcing these rules could undo much of Orbán’s autocratic capture.

Orbán’s Hungary is paralyzed by dozens of laws that require two-thirds parliamentary majorities to be changed, something that would hamstring the opposition even if it could win. But Hungary also ratified the EU treaties and the ECHR by earlier two-thirds majorities. Even Orbán’s constitution says that international law trumps national statutes and therefore wins where the two conflict. So the opposition proposed to break out of Orbán’s legal prison with an international law key forged by these prior parliamentary two-thirds majorities. Bringing Hungary back into compliance with its international obligations guided the choice of laws to reverse.

The problem in Hungary is in fact more complicated than this simple explanation suggests, but the general principle is clear. Once they finally come to power, committed democrats can use international law to guide them in repairing their damaged democracies.

International law resources have expanded since human rights law assisted many of the democratic political transitions of the 1980s and 1990s. The European Court of Human Rights (ECtHR) has become a legal giant, elaborating requirements for democracy, human rights, and the rule of law and forming the core of national constitutional law across the 46 signatory states. The Inter-American Court of Human Rights (IACtHR) and the African Court of Human Rights have also become far more active. The EU has expanded its reach to ensure rights protection and to safeguard the independence of crucial institutions within member states. Election monitoring by international institutions now uses ever-deepening democratic standards for free and fair elections. The Organization for Security and Cooperation in Europe (OSCE), the Venice Commission of the Council of Europe, the Organization of American States, and the African Union have contributed human rights monitoring, election monitoring, and elaboration of basic democratic principles. In short, one does not have to look far in most regions of the world to find transnational law already in place that points the way to democratic restoration.

In the last two decades, international human rights courts have evolved from enforcing rights at the individual level to turning individual rights into structural guarantees at the state level. Take the right to a fair trial. Transnational courts used to focus on trial rights like the right to be heard and equality of arms between states and defendants; they now focus additionally on elaborating what it means for courts to be independent. In a series of recent blockbuster decisions, for example, the ECtHR has found that Poland has violated the individual right to a fair trial because the Constitutional Court and multiple chambers of the Supreme Court are full of judges who have been appointed in irregular ways that cast doubt on whether the courts are free of political tutelage. The IACtHR has defended independent judges in the name of fair trial rights against attempts by the political branches to remove them. The European Court of Justice, the highest court of the EU, has also developed detailed standards for judicial independence. Now, when new leaders of damaged democracies want to reverse autocratic capture, they can turn to these principles to put judiciaries back on an independent footing.

Ditto with election law. Not only has election monitoring become nearly universal since the last wave of transitions to democracy in the 1980s and 1990s, but widely adopted principles for running free and fair elections now exist, developed most notably by the Office of Democratic Institutions and Human Rights of the OSCE. It even makes recommendations about how particular election systems can be improved. The jurisprudence of the regional human rights courts is starting to take these standards into account in interpreting the individual right to vote. The ACtHR, for example, recently found that an election commission with twice as many governing-party representatives as opposition-party representatives violated the individual right to vote of the citizens of Côte d’Ivoire, strongly suggesting that only equal representation would comply.

Committed democrats can use transnational standards like these to repair their country’s domestic institutions. In fact, the standards derive their power from their transnational character. Precisely because they are transnational, they remain outside the reach of parties to a democratic transition and so cannot be gamed by those inside the process. Like the North Star used for navigation by sailors, international standards work to guide democratic transitions precisely because they do not shift when national governments change.

When new governments realign new laws with the legal North Star, they become immediately distinguishable from autocratic governments that worked to detach their regimes from this steadying influence. A new government that commits itself to complying with international law cannot be accused of a mere tit-for-tat against its predecessor or even of simply imposing a new partisan bias. Bringing damaged democracies back into compliance with international law principles restores the rule of law writ large.

Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the University Center for Human Values and the School of Public and International Affairs, Princeton University. In 2023 she was a guest at the IWM.