December 14, 2023
A presentation given by Prof. Thomas Giegerich*
On 14 December 2023, Professor Giegerich made a presentation via Zoom on “The Human Right to Democracy in Multilevel Systems of Government at a Time of Democratic Backsliding” at the Law Faculty of Bilkent University in Ankara (Türkiye).
These are his conclusions: Neither the global nor the various regional levels of government expressly guarantee any “human right to democracy” as such. But civil and political human rights provisions on the global and regional level require States to guarantee the most important elements of democratic government. This constitutes the human rights foundation of democracy. Democratic human rights turn individuals into guardians of democratic systems. This is important in a time of democratic backsliding which the European Court of Human Rights and the Court of Justice of the EU should take more seriously.
The synthesis of these specific democratic rights produces an unwritten general human right to national democracy which promotes the pro-democratic interpretation of the specific rights and perhaps even generates further unwritten democratic rights. This general right to national democracy is in the background of the “democratic society” counterbalance in the limitation clauses of the ICCPR and ECHR. It has, however, not yet been recognised by international courts or quasi-judicial treaty bodies which still grant States a margin of regulatory appreciation that is too broad in view of democratic backsliding.
In multilevel systems, democracy must also be realised at governmental levels above the States, i.e., in international and supranational organisations. International democracy requires that the international order be an expression of the self-determination of the peoples of the world. However, democracy is not opposed to the increasing institutionalisation of the international community. Rather, States are entitled to transfer decision-making powers to international and supranational organisations with regard to regional or global problems that cannot be solved effectively at State level. But democracy requires that these organisations have transparent, democratic, just and accountable decision-making processes that enable the full and equal participation of the peoples of all Member States through their democratically accountable representatives.
The aforementioned democratic human rights also support international democracy. The synthesis of these specific rights produces an unwritten general human right to international democracy, although admittedly, there is little case law yet recognising its existence. That right requires States to guarantee the democratic legitimacy of international and supranational organisations of which they are members. The Matthews Case of the ECtHR can be mentioned in this context.[1]
The general human right to national democracy read together with the general human right to international democracy and the States’ obligation to protect their citizens’ democratic rights generates a further general human right to an adequate overall standard of democracy in multilevel systems. This right helps striking the best possible balance between national and international democracy. It permits and even requires a limited set-off between the levels of democratic legitimacy in the national and the international or supranational system. It also requires adaptation mechanisms within each system in the sense of compensatory democracy. Case law of the ECtHR unrelated to democratic rights supports this approach.[2]
The EU constitutes the most advanced supranational system of government with the strictest national and supranational democracy requirements firmly enshrined in primary Union law both in the form of far-reaching objective standards and less far-reaching judicially enforceable individual rights. While there is an unwritten general right to democracy at EU level of citizens of the Union, .there is no such right to democracy at Member State level, not least because of Art. 4 (2) TEU. Only specific aspects of national democracy (such as participation in municipal elections) have become enshrined as enforceable individual rights of Union law. The EU can serve as an imperfect model of democratic institutionalisation for other world regions and the UN level. Primary Union law further obliges the EU to export democratic standards to third States as well as the international community as a whole. But these objective obligations are not accompanied by judicially enforceable individual rights.
*Prof. Thomas Giegerich holds the Chair for European Law, International Law and Public Law at Saarland University and is Co-Director of the Europainstitut.
[1] GC judgment of 18 February 1999, Matthews v. UK (Appl. No. 24833/94).
[2] GC judgment of 18 February 1999, Waite and Kennedy v. Germany (Appl. No. 26083/94); GC judgment of 30 June 2005, Bosphorus v. Ireland (Appl. No. 45036/98).
Suggested Citation: Giegerich, Thomas, The Human Right to Democracy in Multilevel Systems of Government at a Time of Democratic Backsliding, jean-monnet-saar 2023.
Funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – Project No.: 525576645
