In defense of a human right to democracy: Reflections on the pending Advisory Opinion before the Inter-American Court of Human Rights

On the 26th of March of this year the Secretariat of the Inter-American Court of Human Rights (‘IACtHR’ or ‘the Court’) issued a press release communicating the request for an advisory opinion presented by the republic of Guatemala focused on democracy and its protection in the Inter-American human rights system. Throughout their filing, Guatemala explores the Inter-American system’s extensive treatment of the relationship between human rights, the rule of law, and the democratic system and asks, in essence (para. 31), whether the existing corpus iuris on the matter speaks to the existence of an autonomous human right to democracy protected by the American Convention on Human Rights (‘ACHR’).

The request comes at a time when democratic systems on both sides of the Atlantic find themselves at the crossroads of abusive constitutionalism (Landau): a crisis of faith where the foundations of the long fought systems of protection built during the 20th century are being eroded from within by political movements with massive popular support that use the constitutional rules of the game to undermine core democratic principles. In this troubling global context the IACtHR has a unique opportunity to clarify the obligations of States with regards to the protection of the democratic system as such and make due on the democratic promise of the 2001 Inter-American Democratic Charter (‘IADC’).

In a recent post on this blog, Escobar sought to situate Guatemala’s request for an advisory opinion within human rights law generally, finding it difficult to establish, at present, any human right to democracy within general international law. In response, this post aims to show that the Inter-American Court has already laid the groundwork for the recognition of an autonomous human right to democracy within the Inter-American system.

Defending democracy in the Americas

The Organization of American States (‘OAS’) and its Inter-American Human Rights system have had a long love affair with the defense of the democratic system.

Throughout the system’s foundational documents, the OAS Charter and the ACHR, one can find extensive references to representative democracy. Indeed, both documents’ preambles affirm the treaties’ purposes “to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man”. This aim is doubly emphasised in the OAS charter which also notes the State parties’ conviction “that representative democracy is an indispensable condition for the stability, peace and development of the region” (preamble) and includes among the organization’s essential purposes the object “[t]o promote and consolidate representative democracy, with due respect for the principle of nonintervention” (Art. 2b OAS Charter). The ACHR, for its part, is also littered with mentions of democracy including references to the system in its preamble, supra, as well as in five separate articles: Articles 15, 16, 22, 29, and 32.

These foregoing elements speak to a distinguishing feature of the Inter-American system: since their inception, the supranational bodies the States of the Americas created have held a special place for the democratic system and positioned it as a key element for their continued existence (see Arrighi, p. 200 and Saltalamacchia, p. 21). Nowhere is this impetus clearer than in the 2001 IADC which is the crystallization of the American States’ drive to protect and consolidate democracy on the continent.

The curious case of the Inter-American democratic charter

The IADC holds an “interesting” place in the Inter-American system (Morales, p. 213). As a resolution of the OAS General Assembly it lacks immediate binding effects; at the same time, it has been used extensively both by the IACtHR and the OAS bodies as an authoritative text for the interpretation of their respective treaties. In the latter case, for instance, Article 21 of the IADC was used to suspend Honduras’ rights to participate in the OAS in 2009 after a bitter fracture in the domestic constitutional order (see AG/RES. 2 (XXXVII-E/09 and AG/RES. 1 (XXXVII-E/09)).

For its part, the IACtHR has extensively used the IADC to interpret the rights contained in the ACHR and deepen their protective scope. Indeed, since the case of San Miguel Sosa et al v. Venezuela the Court has emphasised the centrality of the IADC in its system, indicating that “the democratic principle permeates the Convention and, in general, the Inter-American System, in which the relationship between human rights, representative democracy and political rights in particular, is embodied in the Inter-American Democratic Charter” and further noting that “[t]his legal instrument is a rule of authentic interpretation of the treaties to which it refers, since it reflects the interpretation that the OAS Member States themselves, including the States Parties to the Convention, make of the provisions pertaining to democracy in both the OAS Charter and the Convention” (para. 114).

The Court has reiterated this stance in both its contentious (Members and Militants of the Patriotic Union v. Colombia, para. 306) and advisory (Advisory Opinion OC-28/21, para. 53) jurisdictions, showing that the IADC is something more than a mere soft law instrument and instead has an important impact on the human rights obligations of American States. In this regard, it could well be considered that the IADC is a subsequent agreement between State Parties regarding the application and interpretation of the American Convention according to Article 31.3(a) of the Vienna Convention of the Law of Treaties (see  CJI/RES. 159 (LXXV-O/09), res. 1) and thus has a material impact on the obligations foreseen therein.

A trinity of protection: democracy, rule of law, and human rights

In one of its earliest decisions, OC-8/87, the Court established that “[t]he concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire [them]. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad […]”(para. 26). Since then, the Court has only further deepened the understanding of this triad and its impact on the obligations contained in the American Convention.

To this end, the Court has made clear that in the Inter-American system democracy has substantive characteristics which are subject to supranational judicial scrutiny and cannot, therefore, be reduced to its formal/procedural elements (see Ferrajoli, p. 9). In Gelman v. Uruguay, for instance, the Court was confronted with an amnesty law passed by a democratically elected government and validated on two occasions by referendum but which, nevertheless, crippled the possibility of investigating and punishing grave human rights violations perpetrated during the dictatorship. There the Court noted that “[t]he bare existence of a democratic regime does not guarantee, per se, the permanent respect of International Law, including International Law of Human Rights, […] which has also been considered by the Inter-American Democratic Charter” and that “[t]he democratic legitimacy of specific facts in a society is limited by the norms of protection of human rights recognized in international treaties, such as the American Convention, in such a form that the existence of one true democratic regime is determined by both its formal and substantial characteristics” (para. 239).

Throughout its case law the IACtHR has progressively clarified the substantive content of the democratic system making particular use of Articles 3 and 4 of the IADC (on the essential elements and fundamental components of democracy). The Court’s practice on the matter can be said to be composed of three pillars (for a slightly different categorization see Ferrer, pp. 460 onwards): the right to freedom of expression (Art. 13 ACHR) as the “cornerstone upon which the very existence of a democratic society rests” (Palacio Urrutia et. al. v Ecuador, para 87); the independence of the judiciary (Arts. 8 and 25 ACHR) which when absent implies that “there can be no rule of law, nor can democracy exist” (Aguinaga Aillón v. Ecuador, para. 68); and the protection of political rights (Art. 23 ACHR) as “an end in itself and also a fundamental means that democratic societies possess to guarantee the other human rights established in the Convention” (Castañeda Gutman v. Mexico, para. 143).

As a whole, however, this corpus iuris evidences that “the effective exercise of democracy in the States of the Americas constitutes an international legal obligation and they have, in their sovereignty, agreed that such exercise is no longer solely a matter of their domestic, internal, or exclusive jurisdiction” (Advisory Opinion OC-28/21, para. 55). In short: the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it (Art. 1 IADC) – an obligation which, if not complied with, is subject to the jurisdiction of the IACtHR.

Conclusion: on the road to a right to democracy

In the recent case of Gadea Mantilla v. Nicaragua, the Court may have set the stage for the recognition of an autonomous right to democracy in the Inter-American system. In a case centered on the machinations of Daniel Ortega to stay in power beyond two terms, despite an explicit constitutional prohibition to do so, the Court recognized that the affectations to political rights in the case had effects beyond the individual victim and “affected the right of Nicaraguan voters to freely choose among the existing political options” (paras. 117 and 142) – a collective affectation which was met with a collective reparation. In response to a context of institutional degradation in Nicaragua, the Court thus ordered the activation of the “collective guarantee” which entailed “an appeal to the international community and, in particular, to the OAS and the other members of the Inter-American system, to cooperate and assist in order to ensure due compliance with this Judgment” (paras. 158-159). The use of the “collective guarantee” as a means of addressing the democratic backsliding in Nicaragua (as also seen in Capriles v. Venezuela) is proof of the IACtHR’s growing willingness to defend democracy per se from the populist onslaughts the system currently faces.

At both a normative and jurisprudential level, the Inter-American corpus iuris has slowly developed the contours of a human right to democracy whose scope, content, and implications will hopefully be clarified in the pending advisory opinion. The recognition of democracy as a human right is an important step that would consolidate the system’s trajectory of defending democracy as a fundamental prerequisite, a baseline condition, for the effective enjoyment of all human rights of both present and future generations in the Americas at a time when democratically questionable actions have come into vogue.