Many countries have signed international conventions guaranteeing democracy and human rights, but there is — as yet — no authority to ensure those commitments are honoured and no sanctions for those who dishonour them.

Moncef Marzouki, interim president of Tunisia, has suggested an international constitutional court as a way to overcome the failure of international law to deal with abuses of democracy. Under the dictatorship of Zine al-Abidine Ben Ali, Marzouki witnessed elections held in a climate of fraud and terror, and realised that the major international conventions intended to guarantee public freedoms and democracy could not help.

Though democracy is considered a universal value, there is no way of enforcing it. We need to oblige governments to honour their commitments (1). We need a legal mechanism that will make it possible to monitor the constitutional practices of states in relation to international norms on human rights and democratic freedoms. Many national constitutions already place international law above domestic law.

Most states have subscribed to international conventions which say that “Every citizen shall have the right ... to take part in the conduct of public affairs, directly or through freely chosen representatives” and “to have access, on general terms of equality, to public service in his/her country” (2). Their constitutional and legislative arrangements should logically enshrine those rights, not stand in their way. The same goes for the universal right to freedom of thought, conscience and religion. If we accept this principle, all religions must be respected and none imposed. Many countries, forgetting that they are bound by the conventions they have ratified, treat those conventions as mantras. Signatories include democracies that were labelled “popular” during the cold war, states that are more concerned with religious indoctrination than with freedom, and dictatorships. Even the countries of the West, proud to have been the originators of these conventions, do not treat them as real commitments with implications for their national policies.

The deterioration of the way elections are conducted (manipulation of results, questionable financing of election campaigns), prison conditions (an affront to human dignity all over the world) and the way foreigners are treated (often in violation of the principles set out in conventions on human rights) is the result of constitutional, legislative or regulatory measures decreed by states with complete disregard for the treaties they have signed.

Fundamental contradictions

International law is unable to prevent this because the United Nations charter is based on a fundamental contradiction, which has prevented the emergence of a global community founded on moral values: it preaches the development of international law, but guarantees a definition of sovereignty that prevents any progress on that law. Attempts to impose international law on a sovereign state are timid, made in full knowledge that the sovereign state will have the last word. This has led to a worldwide culture of impunity, based on the principle of immunity. There is no international judicial body responsible for monitoring the application of democratic principles by states. Those that do exist do not have that specific purpose and are limited in their scope.

The International Court of Justice in The Hague can only be involved if two states in a disagreement consent, and nothing can force them to do so. The International Criminal Court is seen as major progress, but its only purpose is to punish crimes and it is hampered because some of the most powerful nations have not signed its statute. The European Court of Human Rights does have the power to condemn states for violations of the European Convention on Human Rights, but it is only a regional court, with limited reach. So there is a void in the institutional architecture of the world, which in some respects the Tunisian proposal could fill.

The originality of the proposal is that it is based on public freedoms — the constituent elements of democracy — as well as on human rights, the guarantee of which is a democratic principle in itself. So the defence of democracy is at the heart of the project.

The existing international bodies — not particularly democratic themselves — have made only limited efforts to oblige states to honour their commitments. The UN Human Rights Council, the Human Rights Committee and the regional bodies have no real judicial powers. But the norms resulting from UN pacts and other conventions, such as those on the rights of children and migrants, and the many UN resolutions consecrating the principle of democratic legitimacy and setting out the obligatory measures to be taken by states to ensure it, make up a set of international constitutional norms. The court of the Tunisian proposal would be responsible for the implementation of those norms.

A dual role

This court would have a dual consultative and judicial role, applying the rules and principles concerning democracy and public freedoms. It could be consulted by those worried by the development of a situation contrary to democratic principles: governments, universal or regional international organisations, NGOs, political parties, national associations and professional organisations. Any of these would be able to submit texts (final or draft) relating to democracy or human rights to the court, which would express a detailed opinion as to whether the text conformed to the rules and principles concerning democracy and public freedoms.

The court could also be invoked by individuals (with the support of a petition), the plenary bodies of universal or regional international organisations, or NGOs, over any serious violation (judicial facts or acts) of democratic principles or democratic conditions for elections. The state concerned would be required to follow up on decisions that it might make.

There would be 21 judges — more if required to ensure the successful operation of the court. To ensure they were shielded from the political influence of states, judges would be chosen by a three-step process. States would play a part in drawing up an initial list of candidates, each being invited to put forward one name. This list would be submitted to a panel made up of judges from the International Court of Justice and International Criminal Court, and of members of the UN International Law Commission — people with an outstanding knowledge of international law. The college would then select from the list the 42 candidates it considered to be the most honest and competent. Finally, the UN General Assembly would choose 21 judges from this list.

Pessimists are sure to object that there are already internal or regional courts of judicial recourse in countries and regions. This will not make the new court useless, as no judicial sanctions for violations of international constitutional norms have yet been imposed by the existing courts. The African Union and Pan-American Union prescribe political sanctions (suspension or exclusion from the organisation), but these apply only in the event of a coup. Articles 2 and 7 of the Treaty on European Union set out penalties for the violation of democratic principles and EU association agreements with third countries include a democracy clause, the violation of which will result — at least in theory — in the suspension of the agreement. The new project would have to coordinate the new judicial mechanism with those that already exist. Parties seeking justice would only be able to apply to the new court if they had already exhausted all other paths afforded by the internal system of the state. It would also be necessary to coordinate with regional procedures, where they exist.

The pessimists may also invoke respect for the sovereignty of states as an argument against the new court. But in many countries where people are tempted by dangerously nationalist ideology, it is often forgotten that the best protection is the advance of international law, which may limit the scope of sovereignty but is the result of an agreement between sovereign states. The court project does not threaten sovereignty but demands that commitments made in full sovereignty be honoured.

The African Union has already adopted a resolution supporting the project, which will be presented to the UN General Assembly this autumn. Those keen to see real progress on democracy bear a great responsibility: they must obtain the support not only of civil society, but also of national authorities and political parties. States that do not support the project will be making a blatant declaration of their own bad faith.