Middle Eastern Democracy and the Arab Spring in International Law

JURIST Special Guest Columnist Curtis Doebbler of Webster University and Geneva School of Diplomacy and International Relations, both in Geneva, Switzerland, says that the right to participate in government is a recognized aspiration in international law and that in the Middle East this has begun to be realized with the Arab Spring...
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Recent events in the Middle East have raised and continue to raise important questions about individuals' and peoples' rights to participate in their own government. Although some controversy remains about what this right entails, there is widespread consensus on the existence of a core right of all people to participate in their own government.

One of the best forums for reviewing this consensus is international law, which provides a widely shared understanding of human and peoples' rights as well as the limits within such rights exist. Recent events in the Middle East can be evaluated on the basis of this international law, which arguably offers a much more widely appreciated indication of the international community's expectations than mere political or particular religious claims. International law contains numerous expressions of individuals' and peoples' rights to participate in their own government. These statements range from aspirational declarations to legally binding treaties. Together they provide a reliable understanding of individuals' and peoples' rights to participate in their own government.

An appropriate starting place for understanding individuals' and peoples' rights to participate in their own government is the Universal Declaration of Human Rights. This instrument reflects the aspirational consensus of the international community. It declares in Article 21 that the "will of the people shall be the basis of government." This widely endorsed, but non-legally binding, expression of human rights also states in Article 21 that "[e]veryone has the right to take part in the government of his country, directly or through freely chosen representatives."

Similarly, the aspirational Universal Islamic Declaration of Human Rights states in Article 11 that the "[p]rocess of free consultation (Shura) is the basis of the administrative relationship between the government and the people. People also have the right to choose and remove their rulers in accordance with this principle."

This is not surprising as the right of citizens to participate in the affairs of their state is also a basic tenant of Islam. According to the Qur'an, governments are merely temporal holders of Allah's trust of human life on earth, and government must be conducted in consultation with the governed. This right to participate in one's own government is not developed, but it was clearly recognized hundreds of years before it was recognized in most Western societies.

States have also affirmed individuals' and peoples' rights to participate in their own government in legally binding human rights treaties. The right of all citizens to participate in their own government has been expressly agreed to by about two-thirds of the international community in Article 25 of the International Covenant of Civil and Political Rights (ICCPR).

Regionally, numerous legally binding instruments affirm the right of citizens to participate in their government. Article 24 of the Arab Charter of Human Rights states that every citizen has the right "[t]o take part in the conduct of public affairs, directly or through freely chosen representatives." Article 13, paragraph 1 of the African Charter of Human and Peoples' Rights provides for the right of every citizen to "participate freely in the government of his country." Article 23 of the American Convention on Human Rights recognizes the right of every citizen "to take part in the conduct of public affairs, directly or through freely chosen representatives." Although European countries saw fit to include an express limitation of aliens' political rights in the European Convention on Human Rights (ECHR), Article 3 of the First Protocol belatedly states that "[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The non-binding Charter of the Association of Asian and South East Nations [PDF] repeats a commitment to democracy several times, but contains no explicit reference to the right of citizens to participate in their government.

There are some common elements that run through each of these expressions of the right to participate in one's government. First, this right applies to every citizen, but this is a limited principle of non-discrimination. States may, for example, discriminate against non-citizens and minors as both of these may be excluded from participation in government.

Second, the right to participate is not related to any particular form of government. It may be exercised by a system of government where members of a parliament are chosen to represent the people or by a government where widespread consultations take place so that individuals are able to influence their government. Thus, forms of government are as diverse as the Western form of parliamentary democracy and the Islamic tradition of Shura consultations.

Third, bodies or institutions that are strongly Western-influenced have focused on voting as an element of the exercise of democracy. For example, the General Comment of the Human Rights Committee on Article 25 of the ICCPR and the ECHR focus on this element of democracy. Other instruments, such as the Universal Islamic Declaration of Human Rights and the Arab Charter of Human Rights, are more nuanced. These instruments merely speak about consultation or participation through one's chosen representatives.

Fourth, the right to participate in one's government does not sanction violent acts even if they are politically motivated. Although the prohibition against violence is not expressly stated, it is likely customary international law that flows from the very nature of the Westphalian state which is founded on ensuring peace and security. It also flows from the duty of every state to protect all persons under their jurisdiction from attacks on their security and from inhumane treatment.

Fifth, the right to participate in one's government must be exercised consistently with the right to self-determination. An essential part of the right to self-determination is that the people of a country must decide for themselves the form of government and policies they want. Outside interference with this decision violates the right to self-determination.

In Tunisia, Egypt and Bahrain, the effort to acquire a greater right to participate was exercised almost exclusively by the citizens of the country concerned. The citizens of these countries rose up to take matters into their own hands while explicitly warning foreign elements not to exploit the situation for their private gain. In Bahrain, it was the government, rather than the protesters, that appealed to foreign governments for help using US-advised Saudi troops to violently squelch peaceful demonstrations. In Yemen, there have been widespread allegations that foreign fighters have been involved in the violence against the government.

Libya is perhaps the clearest example of foreign interference. Allegations that the uprising was foreign-led were substantiated when NATO intervened, alleging to be acting on the basis of UN authorization. In fact, the UN authorization said nothing about regime change and proxy occupation, which quickly became central NATO goals. Moreover, while less than 5,000 Libyans had been killed by the civil strife prior to NATO's intervention; estimates of deaths after the intervention have risen to as high as 100,000.

The forms of government supported in the various countries are still very far from clear. Groups joining the uprisings in Yemen and Libya have voiced clear preferences for Islamic-based caliphates. Western influenced groups in Egypt, Tunisia and Libya have called for Western-style capitalist democracies whereby foreigners could own as much or more of the country's resources as could the countries' citizens. Islamic groups, such as Egypt's Muslim Brotherhood, have called for mixed forms of government combining Islamic values with forms of government that are more prevalent in the West. There seems to be a consensus that greater participation rights should be granted to all citizens, and voting rights are usually mentioned in conjunction. Other forms of consultation, however, are also being discussed in Libya and Yemen.

In Egypt, one of the most outstanding features of the demonstrations was their predominately peaceful character. Even when violence was used against protesters they refused to respond with violence. Similarly in Tunisia, the government fell with minimal violence leaving many institutions and people in place.

In Libya, the NATO-led rebels, in what appears to be a well-planned action, almost immediately took heavy weapons under their control and began using significant violence against the government. The Libyan government responded with a heavy use of force by security officers. However, the Libyan government did not call in its army until the situation had deteriorated to the level of a country-wide civil war. Similarly in Yemen, the situation quickly deteriorated into violence on both the government's and the protesters' side. This violence seemed to revive memories of the 1994 civil war and was perhaps responsible for the subsequent ebb in violence. In recent months, with the Yemeni president abroad for medical care after being wounded, the violence appears to have subsided.

In Bahrain, with apparent Western backing, the government effectively used a foreign military, along with its own, to shut down peaceful demonstrators with intensive violence. Ironically, while NATO was bombing Libya it was discouraging violence in Bahrain, but turned a blind eye when it took place with increasingly widespread and stronger intensity.

Finally, a common feature in each case was the claim by those seeking participation that they were exercising their right to self-determination. While usually made in political terms, under international law, the claim seems spurious in cases where violence was used against a government. Again, Libya provides perhaps the most striking example of self-determination being used in a manner that is inconsistent with international law. The reason for this is that Libya was a prosperous country, the richest in Africa, and was on track to achieve all the Millennium Development Goals. Only these two facts indicate that the government in Libya was providing its people with basic social and economic human rights. Criticism was leveled at the Libyan government's civil and political rights record, but such criticism has also been leveled against the US and UK, who have regularly spied on their own citizens.

While it was legitimate for the Libyans opposed to the government to expect that their concerns about civil and political rights be addressed, international law does not allow people to use force to achieve these rights, at least not without exhausting all other means. In fact, the prohibition on the use of force in the UN Charter, as well as the requirement that states resolve their disputes peacefully, indicate that international law has little tolerance for violence.

The use of force to achieve self-determination is restricted by international law. Only national liberation movements fighting against a foreign and oppressive occupation are entitled to achieve their aims utilizing violence. Although the NATO-led rebels claim to be such a movement, they are not widely recognized as such, nor have they made an effort to exhaust non-violent means of achieving their civil and political rights. The fact that Libyans' economic and social rights have been respected more by the government than the NATO-led rebels, who are selling the nation's resources to pay for the military assistance of foreign powers, makes it difficult for them to substantiate their claim to be fighting for national liberation. Instead, they appear to be championing the agenda of countries interested in Libya's resources.

In Egypt, Tunisia and Bahrain, the peaceful demonstrators, while still falling short of recognition as a national liberation movement, have articulated their case in terms that are much more conducive to such recognition. In both Egypt and Tunisia, the point may be moot as the people have achieved some of the changes for which they were calling, particularly the departure of the previous government. In Bahrain and Yemen, the matter of recognition as a legitimate national liberation movement is still open and may be relevant to the continuing opposition to the government.

Although not part of the right to participation in one's government, there are some additional striking features of the recent efforts to achieve greater participation in government in the Middle East that are worth considering. One is the use of the media, especially social media. In Egypt, young people used various social media to organize and to report on what was happening. The mainstream media was wrong footed and forced to catch up, often relying on social media reporting instead of their own reporters.

In Libya, the media became part of the conflict. While CNN, BBC and some local media had become part of the conflicts in Iraq and Afghanistan, and dutifully did so again, the role played by Al-Jazeera was unique. Al-Jazeera, which had gained a reputation for independence, appeared to cave in to pressure from the Qatari government and to offers allowing the network to enter lucrative US markets. Its bias became so accentuated that it was describing events in Tripoli from Benghazi and did not even mention NATO involvement in the armed conflict for the first several hours of its coverage of the NATO-led rebels' entry into Tripoli in the early morning of August 22, 2011.

For its part, the NATO-led rebel uprising in Libya shows that people may be able to overthrow their government with outside military intervention. Crucial to legitimizing this intervention, many will argue, is the apparent cover of the UN. Others, including this writer, have pointed out that when cover itself appears to lack legitimacy, it merely devalues the UN by providing a fig leaf to obscure the malicious intentions of foreign powers. While there can be no denying that the recent events in the Middle East exemplify an increasing demand by people in the region to participate in their own government, the diverse manners in which such demands have been made indicate that both legal and illegal forms have been used.

When demands for participation are made using illegal means, the legitimacy of the demand itself may be called into question. This is not to devalue the demands of any people for greater participation in their government, but to preserve respect for the rule of international law. In the long term, it is agreed rules, such as those of international law, which will allow people of diverse nations to live together in peace. When these agreed rules are ignored, circumvented or violated, international peace and security are threatened more than at any other time.

Dr. Curtis F.J. Doebbler is an international lawyer with an office in Washington D.C., a professor at Webster University and the Geneva School of Diplomacy and International Relations, both located in Geneva, Switzerland, and the representative of Nord-Sud XXI at the UN in New York and Geneva.

Suggested citation: Curtis Doebbler, Middle Eastern Democracy and the Arab Spring in International Law, JURIST - Forum, August 31, 2011, http://jurist.org/forum/2011/08/curtis-doebbler-arab-spring-democracy.php.




This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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