Post-Conflict Administrations as Democracy-Building Instruments

The period that stretches from the end of the Cold War until today has weathered the emergence of a large number of new states. With each addition, the international community has striven to regulate statehood and rein in its most erratic and unpredictable manifestations.1 In particular, the international community has tried to affect what kind of political regimes are set up in these new states. The multi-dimensional administration established by States or International Organizations to (re)build governmental institutions in territories where the governments have floundered completely have constituted an useful instrument to reach that goal. This strategy, while costly, has not been unsuccessful. Through international administrations of territories, several states have been rebuilt or restored, all of them endowed with democratic institutions. It is the aim of this Article to analyze the use of international administrations of territories to create or to reconstruct democratic states. After briefly recalling the status of democracy in international law (section I), the Article explains how modern administrations of territories have proven to be democracy-building machines (section II). Finally, it offers a critical appraisal of the contemporary resolve of the international community to create democratic states (section III). I. PRELIMINARY REMARKS: DEMOCRACY IN INTERNATIONAL LAW There is little doubt that the end of the Cold War and the sweeping fallout of that event on the international plane have impinged significantly on international law and some of its most fundamental principles. International legal scholars promptly recognized that the post-Cold War international legal order had become more amenable to the prominent role of democracy. American liberal scholars, in particular, have enthusiastically supported the idea that democracy today plays a crucial role in the international legal order and have swiftly provided various optimistic accounts of the extent of the legal changes brought about by democracy.2 French positivist lawyers, although they have usually voiced greater skepticism and refrained from embracing the whole array of consequences that liberals attached to a lack of democracy, have also recognized that democracy can play a role in the international legal order.3 Even if one does not agree with all the legal consequences that American liberals have associated with the emergence of democracy in the international legal order,4 it can hardly be contested that living up to some democratic standards corresponds with an international customary obligation. Indeed, contemporary practice shows that, to a large degree, states consider the adoption of the main characteristics of a democratic regime to amount to an international obligation and act accordingly toward nondemocratic states.5 It is of particular relevance that many nondemocratic states do not oppose the principle of democracy, and even claim that they are themselves in the midst of progress towards the establishment of democracy.6 In that sense, nondemocratic states, with a view of strengthening the legitimacy of their government, try to portray their political regime in a democratic fashion rather than choosing to dispute the role that democracy plays in the international order. Nonetheless, this customary legal obligation to adopt a democratic regime must not be exaggerated-such overreaching is where the aforementioned liberal theories about democracy prove unconvincing.7 First, the scope rations matenae of the principle of democracy in international law is limited, as the obligation rests on only an electoral and procedural understanding of democracy.8 States are customarily obliged to abide by democracy to the sole extent that their effective leaders (or the parliamentary body that oversees their executive mandate) are chosen through free and fair elections.9 Likewise, this customary obligation, while being erga omnes,10 is certainly not of a jus cogens character, as it is underscored by the existence of numerous persistent objectors to that customary rule. …