Towards a Human Right to Democracy? Some Initial Thoughts on Guatemala’s Request for Advisory Opinion to the Inter-American Court of Human Rights

In December 2024, Guatemala filed a very extensive request (63 pages) for an Advisory Opinion to the Inter-American Court on Human Rights (IACHR) asking, among other things: “are States obliged to guarantee and promote democracy as a human right protected by the American Convention on Human Rights, as a means for social, political and economic development and the effective exercise of human rights; or, under both assumptions?”. Throughout the document, Guatemala argues that the answer to this question is affirmative by invoking the Inter-American Democratic Charter, the political rights of the American Convention on Human Rights (ACHR), a series of obiter dicta of the IACHR’s case law, scholarship, and pronouncements of the Mexican Commission on Human Rights.

This question is posed within a complex international context. On the one hand, we are facing a crisis of liberal democracy worldwide, in the form of authoritarianism in some parts of the region and populism in other countries. On the other hand, we are witnessing the manipulation of legal institutions, which undermines the rule of law, paradoxically in the name of democracy, as seen in the judicial elections held in June in Mexico. Thus, the IACHR finds itself in a difficult position, as whichever position it adopts could be manipulated for different purposes.

This post aims to analyze whether Guatemala’s argument that there is a human right to democracy aligns with the current development of international law. Considering that Guatemala’s claim is based on soft law instruments that by themselves cannot create a new human right, this post will analyze the most suitable and closest candidate to develop an alleged right to democracy: the scope and content of the right to self-determination.

The Scope and Content of the Right to Self-Determination

The right to self-determination consists of the right that all peoples have to freely determine, without external interference, their political status and pursue their economic, social, and cultural development (1970 Declaration on Principles of International Law).

This right is characterized by a multifaceted legal nature. It is both a principle of international law (according to the UN Charter) and a human right (common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights). In the East Timor case, the ICJ has identified this right as “one of the essential principles of contemporary international law”. Moreover, according to the Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens) of 2022, adopted by the International Law Commission, the right to self-determination arguably enjoys this privileged status under international law.

Most of its content has been developed in its external and political aspects, particularly in the context of the decolonization process (e.g., the General Assembly resolution 1541 (XV) of 1960 and the Western Sahara Advisory Opinion of 1975). However, self-determination, as a human right, is not exhausted in the decolonization context; this is only one of its manifestations (James Anaya, p. 144; Rosalyn Higgins, p. 120).

As evidenced by the travaux préparatoires of the ICCPR, self-determination is a right that all peoples enjoy continuously and permanently, which should be understood in a broad sense, including taking decisions in the social, cultural, political, and economic realms (Marc Bossuyt, p. 33-36). It was initially conceived in its internal aspect as a right to self-governance (Paul Taylor, p. 37-40), which recognizes the margin of action that each society possesses to decide its organization and make decisions according to the national procedures established in its legal order. In its General Comment No. 12, the Human Rights Committee has considered that self-determination “is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”.

Therefore, the right to self-determination is an essential principle of international law and a human right, with its core being the recognition of each people’s free choice in various public aspects that affect their daily lives.

Self-Determination as a Synonym of a Right to Democracy?

According to the element of free choice protected by the right to self-determination, it may be interpreted as a right to democracy. However, the drafters of the UN Charter and of the two main human rights treaties expressly decided to adopt the word “self-determination”, instead of “democracy” (Antonio Cassese, p. 37-47), which suggests that there was an express intention not to recognize a right in these terms.

Moreover, the drafters of the Universal Declaration of Human Rights (UDHR) expressly agreed not to establish a right to democracy as a form of government (Åshild Samnøy, p. 94-95). They noticed that there was no international consensus on what constitutes “democracy” (neither can we find agreement among scholars, as noted by Martti Koskenniemi).

This lack of consensus on the definition should be especially taken into account in the IACHR’s decision, as Guatemala suggests adopting a very comprehensive notion of democracy that would include not only procedural aspects, but also contentious issues such as gender equality in all nominations to public offices, compulsory education on democracy, judicial and administrative independence for electoral bodies, censorship of certain political views, and a compulsory system of multiple political parties.

Additionally, Guatemala mentions that a right to democracy could be extracted from Article 1 of the Inter-American Democratic Charter of 2001, which states that “the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it”. This charter is not a treaty, but a non-binding resolution adopted by the General Assembly of the Organization of American States. Accordingly, it is questionable that a soft law instrument, by itself, could create a new human right without further evidence of state practice and opinion iuris or a conventional norm (especially considering the express intention to exclude this right from other international instruments).

On the other hand, the interpretation of Article 1 of the Inter-American Democratic Charter must be conducted taking into consideration “any relevant rules of international law applicable in the relations between the parties” (as stated in the Vienna Convention on the Law of Treaties, Art. 31(3)(c)). Thus, it should be interpreted in light of the right to self-determination.

In this sense, self-determination is broader in scope than a right to democracy. Self-determination allows each people to decide their form of government (prima facie, any government, not restricted to a democratic option), and it also encompasses other aspects, including a people’s economic, social, and cultural systems, which would be excluded from a procedural or thin definition of democracy. Additionally, it permits a variety of different internal arrangements that are richer than Guatemala’s comprehensive or thick definition of democracy.

What is the Relationship between Self-Determination and Democracy?

The right to self-determination is related to democracy in two ways: (1) regarding political rights and (2) the local implementation and interpretation of human rights norms.

(1) Article 23 of the ACHR (just like Article 26 of the ICCPR) recognizes the right to participate in government (including the right to take part in the conduct of public affairs, the right to vote and be elected, and the right to access public service in equality). Also, as Guatemala notes, several treaties make references to legitimate limitations to human rights as are “necessary in a democratic society”.

These provisions do not prescribe the establishment of a specific form of democratic regime, but they suggest that the ordering of society requires some democratic principles. Reading them in light of the right to self-determination, each people can decide the implementation, ordering, and combination of those principles in their institutions and political regime. Therefore, the IACHR (as an international court) would not be in the best position to establish a uniform implementation model (or political regime) to apply these principles to all States in the same manner. Instead, States would enjoy a certain margin of manoeuvre to decide how to combine and implement these principles, according to their constitutional procedures and cultural context.

(2) On the other hand, recalling the multifaceted nature of self-determination, decisions regarding the implementation and interpretation of human rights norms fall within the scope of this right’s protection, as they encompass several political, social, economic, and cultural aspects of society. Self-determination, then, is a human right that allows each people to decide over the local implementation of the rest of human rights, by adapting them according to the various contexts of each society.

This interpretation aligns with the original vision that underpinned the flexible or pluralistic universality of the UDHR (see Tore Lindholm, p. 17-40; Gabriela García Escobar, p. 178-187; Seth Kaplan, chap. 2), which is in harmony with the principle of subsidiarity that is pivotal to international human rights law (Paolo Carozza, p. 56-63).  

Here, the rights holder is the “people,” not the State apparatus or the ruling elite. Thus, considering the erga omnes character of this obligation, the decisions taken by each people are opposable to their State, other States, and possibly, to international organizations and international courts.

Which would be the limit to this extensive spectrum of possibilities? Some may argue that the answer to this question lies in human rights norms; however, this leads to a circular argument, as self-determination is also considered a human right. Maybe the answer can be partly constructed by democratic principles, respect for the rule of law, and other relevant rules and principles of international law. Still, a right to democracy would not provide sufficient content to set the scope and limitations of this dilemma, or would do so in a manner incompatible with the structure of human rights law and international law.

Conclusions and Some Ideas for Further Analysis

Thus, it is difficult to establish a human right to democracy based on the current state of international law. However, Guatemala’s request led us to ask further questions regarding the content and limits of the right to self-determination and its relationship with democracy.

Still, there is another aspect that the IACHR should consider in its advisory opinion. In his famous book Democracy in America, Alexis de Tocqueville argued that, paradoxically, the preservation of a healthy democratic regime requires virtues and values that are nurtured by non-democratic institutions and behaviors, such as civic responsibility, solidarity, duties towards the community, and the capacity to make personal sacrifices for the common good. Recalling the harsh situation that democracy is facing around the world, Tocqueville’s caveats could help broaden the debate beyond a purely rights talk that may undermine the political and philosophical debate (Mary Ann Glendon, p. 1-18).