The human right to democracy in multilevel systems: A legal toolbox against democratic back-sliding

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By Thomas Giegerich

Global and regional agreements and the Universal Declaration of Human Rights support an implicit general right to national and international democracy.

The human rights revolution since 1945 has established human dignity, liberty and equality as the basis of any democratic system. Simultaneously, the consolidation of multilevel systems of government on the global and regional levels has created parameters for national democracy and demands for international democracy. First formulated in the aftermath of the fall of the Iron Curtain, the “right to democracy” has had its ups and downs. In our time of democratic backsliding, the existence and content of rights to national and international democracy and their interdependence are examined with particular emphasis on the European Union.

Democracy as a universal value

The UN has propagated national democracy as a universal value, defined its essential human rights-based features and helped putting it into practice by election monitoring. The UN Human Rights Council, in particular, has emphasised that human rights, the rule of law and democracy are interlinked and mutually reinforcing. More recently, the UN has also promoted international democracy, including through UN reform, for example in the 2024 UN Pact for the Future. But in the UN sources there is no reference to any individual or collective general human right to national or international democracy which would be helpful at a time of democratic backsliding.

There is a collective right of peoples to national and international democratic self-determination in the sense of an entitlement to the maintenance of elementary standards of democracy in national and international decision-making. National and international democracy are interdependent. The goal is to ensure an adequate overall standard of democracy in multilevel systems of government. While that collective right to national and international democracy is part of jus cogens (peremptory law) and has erga omnes effects (creating obligations vis-à-vis all other states), it is so vague that violations can only be established in clear-cut cases. It is therefore even more difficult to enforce than the right of self-determination in general.

Human rights as cornerstones of democracy

With regard to national governmental systems, essential democratic standards as well as supplementary democratic guarantees such as the rights of citizens to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote and to be elected at genuine periodic, universal, equal and secret elections, and to have equal access to public service as well as the freedoms of information and expression, peaceful assembly and association without discrimination are enshrined in the Universal Declaration of Human Rights (UDHR) of 1948 as well as the human rights treaties at global level (primarily the International Covenant on Civil and Political Rights of 1976) and regional levels in Europe, Africa, the Americas and the Arab world.

These standards and guarantees are enforceable in international judicial and quasi-judicial proceedings as well as politically, most effectively (but not without gaps) in Europe thanks to the European Court of Human Rights. But no general right to national democracy has yet been recognised anywhere. Concerning international democracy and the interdependence between the levels of government regarding democratic standards, only the European Convention on Human Rights and its Court have demonstrated problem awareness and ventured a solution, but not formulated any general right to international democracy or an adequate overall standard of democracy.

The EU as an exemplary albeit imperfect multilevel democracy

In the EU’s quasi-federal (supranational) constitution, democracy at EU and member state levels are obviously interdependent and therefore closely intertwined. Accordingly, EU law formulates concrete democratic requirements with a supranational character for both the EU and the member states. Several of those supranational democratic standards constitute judicially enforceable individual rights with primacy over national law.

Art. 2 and 10 TEU even enshrine a general right to national democracy. By virtue of Art. 4 (2) TEU, however, member states retain broad discretion in designing their concrete democratic structures, so that only elementary democratic standards are made obligatory by EU law. The EU Charter of Fundamental Rights (CFR) codifies the common supplementary democratic rights that bind the member states when they are implementing EU law.

Regarding the EU level, Art. 10 (3) sentence 1 TEU enshrines the central democratic right of Union citizens to EU democracy and Art. 9 sentence 1 TEU the general right to democratic equality. Specific democratic rights at EU level are guaranteed by the CFR, alongside the aforementioned supplementary democratic rights. While the rights regarding national democracy are generally better entrenched (in global and regional international law as well as in EU law) than the rights regarding international democracy, in EU law, the rights regarding supranational democracy are better entrenched than the rights regarding international democracy.

From a synthesis of all these democratic rights, an unwritten general individual right of Union citizens to democracy at EU level can be derived. The EU also actively engages in the “export” of democracy to third states (horizontally) and to the international community (vertically). The human right to democracy in general and in its specific aspects is more firmly entrenched and more easily and effectively enforceable within the multilevel EU system than outside. Union law thus harbours a great potential to counteract democratic backsliding both in individual member states and at EU level.

An unwritten human right to international democracy

In conclusion, the most important democratic elements at national level rest on a firm basis in internationally or supranationally guaranteed democratic human rights and are therefore relatively well enforceable. These specific democratic rights are the source of an unwritten general right to national democracy that has not yet been firmly established but can help counter systemic threats against democratic systems.

The democratic human rights also support international democracy. From their synthesis, an unwritten general human right to international democracy can be derived. Democracy must also be realised internationally in global and regional international and supranational organisations that characterise the modern multilevel system. National and international democracy are interdependent and can come into conflict. The general human right to an adequate overall standard of democracy in multilevel systems requires a balance between national and international democracy.

Democratic backsliding is incompatible with international law

There is an obvious and growing gap between, on the one hand, the firm entrenchment and further expansion in international law of the explicitly guaranteed specific democratic rights and the implicit right to national democracy based on them and, on the other hand, the increasing autocratic reality. As with human rights in general, the realisation of democratic rights experiences ups and downs. After the up we experienced post-1989/90, we are currently witnessing a downward movement.

For the purpose of reversing that downward movement, democrats of all countries should unite in order to help enforce democratic parameters everywhere and at all levels. They can build on good legal and political foundations: All members of the human family enjoy a series of specific democratic human rights that are explicitly entrenched in the various global and regional human rights treaties as well as the truly universal and often confirmed UDHR; they are also part of supranational EU law. These guarantees, which are more or less effectively enforceable in national, international and supranational courts and treaty bodies, support an implicit general individual right to both national and international democracy at all levels that overlaps with the collective peoples’ right of self-determination.

We can uphold democracy by exercising our human rights

While this general right will rarely be enforceable as such, it informs the pro-democratic interpretation of those specific rights and may generate further specific pro-democratic rights functioning as gap-fillers. Autocratic government and, even more, retrogression from established democratic standards into autocracy, is presumptively incompatible with international and supranational law. Each and every holder of democratic rights can contribute to uphold national and international democracy by resolutely exercising their rights.

In conclusion, we have all the necessary legal and political instruments at our disposal at all governmental levels to counteract democratic backsliding. They need to be used with determination.

Thomas Giegerich is professor emeritus for European law, international law and public law at the Saarland University.

This article is based on the author’s book “The Human Right to Democracy in Multilevel Systems at a Time of Democratic Backsliding: Global, Regional and European Union Perspectives,” which has recently been published online by Springer Nature (open access).

Pictures: Chalking the Universal Declaration of Human Rights: University of Essex 2015 [CC BY-NC 2.0], via Flickr; portrait Thomas Giegerich: private [all rights reserved].