International law is increasingly concerned with national transitions to democratic government. The holding of free and fair elections alone, however, provides no guarantee that a democratic system will become firmly established and capable of resisting challenges by anti-democratic actors. The question thus arises of how intolerant a democracy may become toward such actors in order to preserve itself without relinquishing the claim of being democratic. This problem has arisen on a number of occasions, perhaps the most dramatically upon the cancellation of the second round of the Algerian elections in early 1992.
This Article explores the legal issues raised by the presence of anti-democratic actors in an otherwise generally 'free and fair" electoral process. The Article first examines two models of democratic government- the procedural and the substantive-which take opposite perspectives on the permissibility of excluding anti-democratic actors. Using these models as organizing themes, it then examines the practice of a number of democratic states and the jurisprudence of international human rights regimes. The Article concludes that both national and international practice favor a substantive model of democracy, which holds that the long-term survival of democratic institutions outweighs short-term deprivation of political rights to anti-democratic actors. Having reached this general conclusion, the Article goes on to examine the standards required under international human rights law for the exclusion of such actors and the type of conduct that might justify a ban. Finally, the Article asks whether states that have obligations under human rights treaties to guarantee democratic government are now legally required to exclude anti-democratic actors if the integrity of their democratic institutions is at stake. The Article concludes that such a requirement does exist, though its concrete meaning will differ greatly from state to state.
International Law | Law and Politics
Gregory Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int'l. L. J. 1 (1995).