The Extinction of the West African Lion: Whose Responsibility?

 Posted by: Nollkaemper André

A recently published study showed that the lion in West Africa is now critically endangered and faces extinction. From one angle, this would be just one of the large (though unknown) number of species that has previously faced extinction or has even become extinct. But the risk of extinction of some species give more reason for pause than others. Surely the lion – a cultural icon for cultures across the world since time immemorial – deserves a moment of reflection.

The cited study describes how the lion was once the most successful large carnivore. Its range extended from South Africa, across Eurasia, and into the southern United States. Today, the lion’s range is restricted to Africa, with a population of the Asiatic sub-species in India. Lions in Africa have lost 75 percent of their range in the last 100 years.

In West Africa, the situation is particularly critical. The West African lions, a population with unique genetic and conservation value, now has a declining population of less than 250 mature individuals, spread over five states: Senegal, Benin, Burkina Faso, Niger and Nigeria.[1]

The causes of decline are manifold, including large-scale habitat conversion, prey base depletion through unsustainable hunting, trophy hunting and the killing of lions due to perceived or real human-lion conflicts.

Whether the lion can be saved from extinction in West Africa is doubtful given demographic pressures, lack of popular support in those areas that matter and lack of resources.

Despite all moral allure that has been ascribed to it, international law has very little to offer for those who seek to prevent the extinction of the lion. The moralisation of international law above all is humanisation – no place here for moral concerns over other big species. Nonetheless, there are three instruments that one could rely on.

One is the Biodiversity Convention. Now more than two decades old, this remains a remarkable piece of international legislation – precisely because it transcends the human dimension of international law. It is a precious framework for international governance and development of policy and possible future laws. But as it is, it does not contain provisions that actually curtail a state from letting the human-lion conflict end in an absolute triumph for the former.

The Convention on Trade in Endangered Species (CITES) has more teeth. Trophy hunting is still a popular pastime for the rich that depends, for its allure, on subsequent trading to places where others can marvel about the remains of the animals. CITES lists the African lion on Appendix II, implying that trade requires permits, which relevant authorities should only grant if they are satisfied that trade will not be detrimental to the survival of the species in the wild. CITES could help even more if it is recognised, as the study suggest, that the West African lion is distinctive and should be considered as critically endangered in West Africa. But in the totality of things, the killing through hunting is only a marginal contribution to the lion’s demise.

Potentially most relevant is the African Convention for the Conservation of Nature and Natural Resources. This Convention, that is to supersede the 1968 Convention, requires protection of species and habitats. But it is not in force and only one of the five states (Niger) where the West African lion is found has ratified it. Four of the five states are a party to the original 1968 Convention, which lists the lion in ‘Class B’, meaning that states shall protect the lion but that they may also allow hunting, killing and capturing. It appears that the listing for the species as a whole in Class B will not be enough to protect a critically endangered subspecies, to which one may add the usual problems of enforcement due to lack of resources.

The fact that international law has not more to offer may be regrettable as it denies a potential power for those who aim to save the species. But this is not surprising. The five states where the West African lion now survives have little to gain by accepting and implementing a far reaching obligation to fully protect the lion.

There are two points to consider. The first are costs. Even if the five states, or a wider group of states where the lion in relatively recent history has been able to survive, could agree that they share an interest and perhaps a responsibility to protect the species (for the sake of tourism, humanity, or simply for the sake of the animal) it seems unthinkable that these states would have the means to do what it takes.

Another recent study estimated that sound management schemes for unfenced populations require budgets in excess of 2,000 million US dollar per km2 to attain half their potential densities. The range of the remaining lions is estimated at 49,000 km2 which would make for a budget of 98,000,000 million US dollar per year. There is no way in which the five countries in question could collectively bring up that money.

Fenced reserves would be cheaper – they could maintain lions at 80 percent of their potential densities on annual management budgets of 500 US dollar per km2. But fencing in itself is expensive (and some may ask why it is the lion that should be fenced in to protect populations that grow in uncontrolled speed and directions – should not rather men be fenced in to let the lion roam?)

The second point is who would have good grounds to insist on acceptance and performance of protection obligations. Given the location of the species, transborder habitats, and the relative power of regional institutions, one might say that this is an issue that calls for African solutions for African problems. But the question that should be asked is why five states should assume an obligation towards all other African states, which in the past did not care and let the lion go extinct from their territories. These include Mauritania, Gambia, Mali, Guinea-Bissau, Guinea, Sierra Leone, Cote d’Ivoire, Ghana, Togo, and Cameroon. Even assuming that these states would care about protection of the remaining lions, it is hard to see on what ground they could now place themselves in a position where they could insist on acceptance and performance of obligations for the remaining five states to save the species for the African continent.

That is even more true for states in the Middle East and Europe, that were once part of the lion’s range. Given the widespread panic in cases of incidental sightings of bears and wolves in populated Europe, few will regret Europe’s contribution to the demise of the lion. But it is morally problematic to combine this with calls on African states to accept and implement obligations to protect the remaining animals that we do not want in our backyard.

As so often in the question for protection of species, the one factor that might alter the equation is money. If we truly care about the lion (and wish to ensure that also in the future the Lion King allows for an association with reality that Walking with Dinosaurs lacks), protection should be paid for.

The price of 100 million US dollar per year may seem high, but this is all relative. The International Criminal Court so far has cost over 900 million dollar in return for one verdict. The Lebanon Tribunal has already cost around 325 million dollar for proceedings against four Hezbollah members in a case that has the appearance of leaving unaffected the deeper causes of the problems.

Comparing costs of saving lions and costs of prosecuting individuals is of course comparing apples and oranges. But sharing responsibility is also about making choices, and exposing for which issues money can make a difference and for which it is largely symbolic, helps in making the right choice.

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[1] Figure 2. Lion status in West African protected areas within lion range. Henschel P., Coad L., Burton C., Chataigner B., Dunn A., et al. (2014) The Lion in West Africa Is Critically Endangered. PLOS ONE 9(1): e83500. doi:10.1371/journal.pone.0083500.

Protecting the Arctic area – a responsibility of many?

 Posted by:Schechinger Jessica

On 16 December 2013, the fourth SHARES Debate entitled Protecting the Arctic area – a responsibility of the Netherlands? was held in Amsterdam. The panel consisted of three speakers: Louwrens Hacquebord, René Lefeber, and Daniel Simons. André Nollkaemper acted as moderator. This blog post highlights the main parts of the debate.

Background – changes and threats

Through the melting of the ice of the Arctic, as a consequence of global warming, new economic opportunities for states and businesses arise. Areas that until recently were covered in ice are now opening up, creating, for example, permanent navigational routes between Asia and Europe, and enabling the exploitation of oil and gas resources that had been previously located in inaccessible areas. The Netherlands, as well as companies incorporated in the Netherlands, are among the many actors that want to capitalise on these new opportunities. The increase of economic activities can pose significant risks to the fragile ecosystem of the Arctic. This raises a fundamental question: who is responsible for the management, use and protection of the Arctic area? In this complex situation, question arise over the role and responsibility of the Netherlands and other actors, including Dutch companies such as Van Oord, Boskalis and Shell.[1] The Netherlands’ policy framework concerning the polar regions (Beleidskader Nederland en de Poolgebieden 2011-2015) addresses the importance of the Arctic area for the Dutch industry, and describes the Arctic administrative system as a geographic and legal patchwork.

The role and rights of the Arctic states

A geological survey carried out by the United States revealed that there are (potential) substantial oil and gas reserves in the Artic area,[2] which has led some of the Arctic states to claim parts of the sea and seabed (for more information and a map on Maritime jurisdiction and boundaries in the Arctic region of the International Boundaries Research Unit of Durham University see here). As a result of increasing oil prices, multinationals have an increased interest in the Arctic area. The five states bordering the Arctic Ocean (the United States of America, Canada, Russian Federation, Norway and Denmark (including Greenland and the Faroe Islands) can exercise authority under the 1982 United Nations Convention on the Law of the Sea (LOSC) over most of the oil and gas resources. They therefore play an important role and are primarily responsible for managing and protecting the Arctic environment.

In 2008, the five states bordering the Arctic Ocean adopted the Ilulissat Declaration, claiming a stewardship role in protecting the Arctic Ocean.[3]

The most important international governmental forum in the Arctic is the Arctic Council, which is composed of the five aforementioned states and Sweden, Iceland and Finland (the latter three being Arctic states that do not border the Arctic Ocean). These Arctic Council member states cooperate and coordinate Arctic issues in this Council. An increasing number of ‘observer’ states participate in this forum, including the Netherlands.

The main applicable legal instrument for the Arctic area is the LOSC. The LOSC provides in Article 56(1)(a) that a coastal state has, in the exclusive economic zone (EEZ) ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.[4] However, these states also have obligations. Importantly, according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment’. In order to achieve this, Article 194(2) LOSC provides that states ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’. Further, ‘States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’ (Article 194(1) LOSC). In the EEZ, coastal states have functional jurisdiction over the protection and preservation of the marine environment (Article 56(1)(b)(iii)). Article 56(2) LOSC moreover provides for the notion of due regard according to which coastal states need to consider the rights and duties of other states while exercising their rights and performing their duties under the LOSC.

Both Hacquebord and Simons emphasised that exploratory drillings and oil production are more and more conducted ‘offshore’ (away from the coast). These activities increasingly take place in the direction of the geographic north pole, leading to risk and disturbance for flora and fauna. A potential disaster would be more difficult to fight and could have severe environmental consequences for this area. Be that as it may, currently, all Arctic states have planned offshore exploratory drillings in the area. Gazprom is most advanced in offshore oil production.

The role of third states and the Netherlands

Besides the Arctic states, many other states have become involved in the discussion on issues related to the Arctic, including China, Japan, South-Korea and the Netherlands. These third states see economically viable opportunities, having for example an interest in permanent navigational routes between Asia and Europe. It needs to be emphasised that according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment.’ Therefore each of these states has a (subsidiary) responsibility for the protection and preservation of this unique and fragile area.

The Netherlands, as a third state, has to strike a balance between the economic interests and gains involved and protecting the ecosystem of the Arctic. According to Hacquebord, because the Netherlands has a long tradition of being actively involved in scientific research in the area (starting 1882-1883 and going back to the time of Willem Barentsz at the end of the 16th century), it also has a responsibility for this area. The Netherlands currently also conducts research there. Because the Netherlands is connected via natural systems such as climate and migratory birds with the Arctic, sea level rise due to melting of the ice that occurs in that area also has consequences for the situation in the Netherlands as a low laying country. Although the ‘observer’ status of the Netherlands in the Arctic Council must not be overestimated, it can make a difference in the working groups of the Council (where policy on e.g. protection of the Arctic marine environment and sustainable development is being determined), through the Dutch researchers that are members of these working groups. For the PowerPoint presentation of Professor Hacquebord see here.

Lefeber, who recently represented the Netherlands at the International Tribunal for the Law of the Sea in Hamburg in the Arctic Sunrise case between the Netherlands and Russia, emphasised in his oral pleadings in this case the historical link of the Netherlands with the Arctic area (calling the account of Willem Barentsz and the other sailors part of the Dutch national cultural heritage). He mentioned that the Netherlands feels responsible to a limited extent for the Arctic area, since it recognises and respects the sovereignty of the Arctic states over the territory. The Arctic states have prescriptive jurisdiction and enforcement jurisdiction, also with regard to the adjacent maritime areas. However, the exercise of jurisdiction has to be in conformity with international law.

According to Simons, the role and influence of the Netherlands should not be overestimated, but it can however make a positive contribution to minimise environmental risks. As observer, the Netherlands can plead for strict and binding rules and thereby make investing in the oil/gas industry in this area costly and less attractive. Shell for example has conducted some exploratory drillings in the Arctic area, and Gazprom and Shell have recently established a joint venture. According to Simons, the Netherlands should exercise more restraint and look more critical to the long term interests it has as a low laying country.

The European Union

During the discussion with the audience the role of the European Union (EU) was discussed. The speakers noted that the EU is trying to become involved, a request for observer status is under continued consideration. The EU sees economic opportunities and invests for example in the Arctic programmes of the European Polar Board. However, currently there is not sufficient support to grant the EU such a status.

The role of NGOs

NGOs such as Greenpeace and the World Wide Fund for Nature are becoming more active in the protection of the Arctic area, occasionally leading to conflicts with both Arctic states and multinationals. The main aim of NGOs is to raise public awareness and try to affect change in policies of states and companies. Hacquebord drew attention to the fact that NGOs (together with the media) have changed our perception of the Arctic area, by portraying it as a fragile ice wilderness with special animals that belongs to all of humanity and which is being ‘invaded’ by oil companies.

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[1] Unfortunately, none of the contacted companies was able or willing to participate in this debate.

[2] According to Simons, this survey has showed that there is (possibly) enough oil to meet world demand for about three years.

[3] ‘The Arctic Ocean is a unique ecosystem, which the five coastal states have a stewardship role in protecting. Experience has shown how shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants and indigenous communities. We will take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean.’

[4] Article 193 LOSC provides in general terms that: ‘Sovereign right of States to exploit their natural resources States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.’

Costa Rica and Nicaragua: A Tale of Two Rivers, Four Court Cases, Concessions and a Canal

 Posted by: Kathryn Greenman

Central American regional relations don’t often hit the international news headlines. Yet for those of us with an interest in shared responsibility it would be worth keeping an eye on Nicaragua and Costa Rica. Their often tempestuous relationship touches on many of the issues raised by the complex socio-political and historical contexts, involving interconnected and interdependent realities and a multiplicity of different actors, in which the law of international responsibility is asked to do its work. Accordingly, this blog reflects upon shared responsibility in three areas; the environment, immigration and development, in light of the role played by states and by non-state actors from international organisations as diverse as the Ramsar Secretariat and the World Bank to organised armed groups and multinational corporations.

The San Juan River and the Ramsar Convention – shared responsibility for the protection of the environment

No one other pair of states has given the International Court of Justice (ICJ) more business than Costa Rica and Nicaragua; these neighbours having faced off in The Hague no less than four times in the last 20 years.[1] Their latest skirmishes have concerned the San Juan River, a lengthy part of the southern bank of which marks the frontier between the two countries as it flows east from Lake Nicaragua towards the Caribbean Sea. Nicaragua and Costa Rica have been arguing about the San Juan for well over a century. However, the dispute which saw two sets of hearings before the ICJ in the autumn of last year has reason to catch our attention.

The border marked by the San Juan River passes through a large natural wetland area, rich in biodiversity and ecosystems. Both Costa Rica and Nicaragua have designated their respective parts of this territory as areas of international importance under the Ramsar Convention. When it was adopted in 1971 the Ramsar Convention was the first of the modern multilateral international environmental law treaties. Creating as it does a framework for international co-operation for the conservation and wise use of wetlands and their resources, it was one of the earliest recognitions of the necessity of shared responsibility.

In its application initiating proceedings, Costa Rica accused Nicaragua of, among numerous other international law violations, causing damage to protected wetlands in breach of its Ramsar obligations through its dredging of the San Juan River and construction of an artificial channel across Costa Rica’s northeast Caribbean wetland. The ICJ subsequently ordered as a provisional measure that the parties, in consultation with the Ramsar Secretariat, ‘use their best endeavours to find common solutions’ for the protection of the environment in the territory in question. Judge Sepúlveda-Amor noted in his separate opinion, advocating more extensive measures, that ‘the fact that these wetlands are interconnected means that their environmental protection requires a wider bilateral collaboration’.

However, despite the ICJ’s order, the dispute deepened. Nicaragua brought a separate claim against its neighbour, since joined to the proceedings instituted by Costa Rica, alleging that it is the latter which is breaching the Ramsar Convention by building a road along the southern bank of the San Juan. Then in September of last year Costa Rica requested new provisional measures (which were granted) on the basis that Nicaraguan authorities had started digging two new channels in the northeast Caribbean wetland causing further environmental damage. In the latest development, in its order of 13 December 2013 the ICJ rejected Nicaragua’s request for provisional measures in respect of its counterclaim. Nevertheless, it noted that during the hearings Costa Rica had acknowledged its obligation to take measures to mitigate the (transboundary) environmental harm caused by its construction works and to prevent any future such harm, and to submit an environmental impact assessment in respect of the road, with both sides declaring themselves the winner as a result. It is worth following how this dispute plays out as, with the Ramsar Convention providing a potential treaty-based framework for shared responsibility, it offers the possibility of some interesting jurisprudence and practice.

Rivers of people – shared responsibility in the immigration context

The San Juan is not the only river which runs from Nicaragua towards Costa Rica. The migration of Nicaraguans south is the third most significant inter-regional flow in Latin America and the Caribbean. The border between Costa Rica and Nicaragua is as porous in human terms as it is from an environmental perspective. However, unlike the international legal framework provided by the Ramsar Convention for the protection of the wetlands which span their territory, international law has less to tell us about the responsibility which Costa Rica and Nicaragua may share for the human population which transverses their borders.

According to official data,[2] in 2011 well over a quarter of a million Nicaraguans were living and working south of the border, representing three quarters of Costa Rica’s immigrant population. Every year many more join them, left with little choice but to abandon home and family in search of a better living in Costa Rica where Central America’s most stable economy offers higher wages and greater job security. Here, however, many face extremely poor working conditions, lack of access to basic social services and a climate of xenophobia and discrimination. Indeed, in 2006 Nicaragua sued Costa Rica before the Inter-American Commission alleging its failure to protect the human rights of Nicaraguan immigrants under its jurisdiction, although the petition was eventually dismissed on the basis that Nicaragua had failed to demonstrate that domestic remedies had been exhausted.

Countries concessioned – shared responsibility and development

While Nicaraguans originally began to emigrate during the civil war years of the 1980s, the stream of immigrants from Nicaragua to Costa Rica looks unlikely to dry up anytime soon despite the conflict having ended over 20 years ago. Even though the Nicaraguan economy is growing steadily, growth has predominantly been to the benefit of the privileged. It remains the second poorest country in the Western hemisphere behind Haiti and the proportion of Nicaraguans living on less than 2 US dollars a day has stagnated at levels of around 45 percent. While the World Bank heaps praise on his administration, President Daniel Ortega has been accused of politically exploiting the dispute over the San Juan River to distract from controversies at home (as has his counterpart Laura Chinchilla who is desperate to boost her Party’s woeful approval ratings ahead of elections in February 2014).

Despite mounting reports of evidence to the contrary, the Ortega regime continues to deny that the Contras, familiar to all students of international law, are re-arming in Nicaragua’s northern mountains. Tension has been heightened by the recent approval of a sweeping reform of the Constitution. Of particular interest from a shared responsibility perspective is that the reform constitutionalises the granting of a 50 year, 40 billion US dollar concession to Chinese entrepreneur Wang Jing’s HKND Group to build the long talked about Nicaraguan inter-oceanic canal. A characteristic shared by Costa Rica and Nicaragua is their governments’ fondness for concessions, conferring on foreign multinationals rights to carry out public works and exploit natural resources. In the case of Costa Rica, in 2011 an almost 1 billion US dollar concession, the biggest in the country’s history, was granted to Dutch multinational APM Terminals to build a new container terminal on the Caribbean coast. The concession has proved hugely controversial and is vehemently opposed by both environmental groups and workers’ unions. Indeed, such projects frequently have a devastating environmental and social impact and are causing ever-increasing social unrest throughout Central America.

Concessions raise complex questions of sovereignty and shared responsibility (particularly in the unprecedented situation of a constitutionalised concession) to which international law currently lacks answers. However, there have been some interesting recent developments. First came the precedent setting decision of a Canadian court last July that a Guatemalan indigenous community could bring proceedings directly against Canadian mining giant Hudbay Minerals in the Canadian courts in respect of human rights violations by its subsidiary in Guatemala. This was followed by a December ruling that an Ontario court can hear proceedings brought against a Canadian subsidiary of Chevron to enforce a 9 billion US dollar Ecuadorian judgment against its US parent company in respect of one of the world’s gravest environmental disasters in Ecuador’s Lago Agrio region. In November 2013, the Inter-American Commission had held a hearing to consider the responsibility of the host and home states of transnational mining companies for human rights violations in the region, at which was discussed Canada’s potential responsibility for the failure of its justice system to guarantee victims of human rights violations caused by its mining industry overseas access to justice.

Concluding remarks

Despite their limited visibility on the world stage, both Costa Rica and Nicaragua have their own rich history and culture and their peoples a proud tradition of struggle and resistance (to which it is of course impossible to do justice here). There is much to be gained from diverting our gaze in their direction once in a while.

 

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Kathryn would like to thank the Asociación Binacional de Solidaridad de los Nicaragüenses Radicados en Costa Rica for their help with this blog. For more information or to find how to express your solidarity with efforts to build a culture of tolerance, equality and respect for human rights amongst the Nicaraguan and Costa Rican communities in Costa Rica, please visit: http://binacional.wordpress.com/ or, if you’re a non-Spanish speaker, you can email Kathryn at k.j.greenman@uva.nl.

 

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[1] Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) (2011); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (2010); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (2005); Border and Transborder Armed Actions (Nicaragua v. Costa Rica) (1986).

[2] It is important to note here that these figures are rough estimates at best as they do not, of course, include those most vulnerable of immigrants, the undocumented.

The Honduran presidential elections: democracy – a shared responsibility?

 Posted by: Kathryn Greenman

Since the end of the Cold War, the promotion of democracy has increasingly come to be considered a matter of legitimate concern for the international community. In light of this, it seems pertinent to ask whether international law offers us a framework for understanding the shared obligations and responsibilities of the international community with respect to the democratic crisis currently taking place in Honduras.

 

The 2009 military coup in Honduras and its aftermath

It is a common story in the annals of Central and Latin American history. A military coup (reportedly backed by the United States) deposes a democratically elected President whose program of leftist social and economic reform has upset powerful elites. This is what happened in Honduras when, in the early hours of 28 June 2009, then President Manuel Zelaya was dragged from his bed by soldiers and, still in his pyjamas, taken to a nearby air force base and flown into exile. Since being elected in 2006 Zelaya had increased the minimum wage by 80%, introduced free education for all children and embarked upon a program of agrarian reforms, threatening the interests of the economic, political, military and religious oligarchy which had ruled Honduras since independence. His opponents accused him of attempting to reform the Constitution so as to perpetuate himself in power. In the four years following the coup Honduras has become one of the most violent countries on earth, with an average annual rate of over 80 murders per 100,000 inhabitants, around ten times the global average. Its second city San Pedro Sula is considered the murder capital of the world. Beyond the epidemic homicide levels, human rights organisations report widespread persecution of human rights defenders and journalists, pervasive discrimination against women and the LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) and indigenous communities, and the collapse of the justice system.

This past 24 November, Hondurans had the chance to go to the polls in presidential elections for the first time since the coup. Xiomara Castro, candidate of the Freedom and Re-foundation Party, or LIBRE (for its name in Spanish), was tipped to break the bipartisanship of the centre-right Liberal Party and right-wing National Party, which has dominated Honduran politics for more than a century. LIBRE had been founded out of the National Popular Resistance Front, an historic alliance of grass-roots social movements which came together in the months after the coup to demand a return to constitutionality. Nevertheless, late on election day evening, Honduras’s Supreme Electoral Tribunal declared that the ruling National Party’s candidate, Juan Orlando Hernández, had an irreversible lead with approximately half of votes scrutinised. Meanwhile opposition parties, the resistance movement and international observers decried massive fraud, including voter intimidation, violence, vote buying and other irregularities in the counting of votes.

 

The right to democracy – a legal framework for collective action?

The right to free and fair elections is protected by a number of international human rights treaties.[1] Today international election monitoring by national, regional and other non-governmental organisations to ensure compliance with international human rights standards is an almost omnipresent part of electoral processes. The international regulatory framework governing such practice provides that observation missions must be carried out co-operatively, independently and impartially.

Whether democratic governance as such should be considered an explicit human right is a matter of much controversy. Nevertheless, the Organization of American States (OAS) has been a frontrunner when it comes to the recognition of such a right. In 1991, with the adoption of Resolution 1080, the OAS established an institutional mechanism for collective action in defence of democracy in the event of a coup. A new Article 9 was added to the OAS Charter in 1997 allowing for the suspension of Member States in such circumstances should diplomatic initiatives to restore democracy fail. In 2001, American Heads of State adopted the Declaration of Quebec, stating that, ‘[t]he maintenance and strengthening of […] strict respect for the democratic system [is …] a shared commitment’. This led to the elaboration of the Inter-American Democratic Charter later that same year which consolidated existing OAS instruments for the protection of democracy. Article 1 of the Charter states that, ‘[t]he peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it’.

However, the reaction of the international community to the Honduran crisis suggests that in practice we are quite some way from the establishment of an international legal regime of shared primary and secondary obligations in respect of a right to democracy. While the majority of States condemned the original coup, the United States was criticised for its hesitant response, and a deal was ultimately brokered to legitimise the coup regime. The official electoral observation missions of the OAS, the European Union and the United States all declared the recent elections transparent in their final reports, at odds with evidence from other observation missions and even contrary to claims by their own delegates. The leaders of many of Honduras’s neighbours have already met with Hernández as recognised President-elect, including Nicaragua’s Daniel Ortega, himself accused of growing authoritarianism after a package of anti-democratic constitutional reforms enabling, among other things, his indefinite re-election were approved by the Nicaraguan parliament last month.

 

Concluding remarks

We might identify various reasons to be hesitant about an international human right to democracy. After all, when it comes to things done in the name of democracy, the United States for one does not have a great track record in Latin America. Furthermore, the extent of the agreement about the desirability of democracy is only matched by the extent of the ambiguity surrounding its content. The imperialist tendencies of universalising a uniform conception of democracy as the one and only acceptable model of governance in the international community cannot be understated. Nevertheless, in the face of such uncertainty one thing is clear. While the idea of shared responsibility for protecting democracy remains at the level of political rhetoric with States persisting in responding to their own particular interests when it comes to the promotion of democracy, the Honduran people will continue resisting, with or without the support of the international community.

 

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[1] Article 21 of the Universal Declaration of Human Rights; Article 25 of the International Covenant on Civil and Political Rights; Article 3 of Protocol 1 to the European Convention on Human Rights; Article 23 of the American Convention of Human Rights; and Article 13 of the African Charter of Human Rights.