민주적 거버넌스에 대한 소고 - Thomas Franck 교수의 주장을 중심으로 -

The late Professor Thomas Franck’s article published in 1992 on the emerging right to democratic governance in international law has had significant impacts on many international lawyers who have become virtual members of his so-called ‘democratic entitlement school’ in international legal studies. According to his point of view, democracy or more specifically, the right to democratic governance had started to be formed within the framework of public international law. By the right to democratic governance he meant the people’s or citizens’ substantive democratic right to participation in the overall political process or governance as such, which goes beyond the human-rights treaty– based guarantees of civil and political rights in the sense of procedural rights. It also implied that states or governments tended to be regulated by the principle of democracy in terms of their status of legitimacy in international relations, thereby giving justifications for the international or regional organizations to intervene in the dictatorial states with the goal of punishing such undemocratic regimes and restoring democracy. Professor Franck argued that the post-Cold War democratic developments, as demonstrated by the positive involvement of international organizations in ‘failed states’ in the context of implanting democratic political structures as well as possible international sanctions against states in which democratically electedpresidents were overthrown by illegal military coups, might indicate a new democratic trend. That is to say, the right to democratic governance started to be integrated into the domains of international law. Such international positive interference in domestic politics would have been inconceivable under the classical version of international law, as it would have violated the principle of non-intervention in the domestic affairs of other states. With this academic background in mind, this paper attempts to evaluate Professor Franck’s so-called ‘democratic entitlement thesis’ from a current perspective, as over two decades have passed since the publication of his aforementioned influential article. This paper makes the point that the development of the right to democratic governance has fluctuated greatly in relation to the dynamics of international order. More specifically, the existence of stricter democratic requirements or procedures for the recognition of new governments in the sense of governmental democratic legitimacy after the end of the Cold War were impressive in international practice. However, it is also observable that the claims for democratic governance have been stifled or relatively restricted as major advanced democracies, particularly the US, began to focus more on security than human rights and democracy as a consequence of the devastating September 11 attacks in 2001. Furthermore, the controversial second Persian Gulf War in 2003 and the eventual problematic reconstruction process in Iraq in the context of democratic nation-building led by the US implicitly gave the wrong messages to the world’s dictatorial countries that US-led pursuit of democratic nation-building was nothing more than that of ‘regime change’ within the logic of power politics. Having said that, this paper does not argue that democratic governance is no longer persuasively acceptable in present international relations. The rights to democratic governance or democratic requirements are still important and influential in international relations in many ways, given that many dictatorial regimes in the world have tried to defend their illegitimate political positions by making attempts to promote democracy in terms of domestic politics. In this regard, this paper argues that it is too early to evaluate the status of ‘democratic entitlement’ as a success or failure in a black-and-white sense inpresent international law. In other words, although it would be difficult to say that the right to democratic governance has been ‘firmly’ established as an ‘enforceable’ right under present international law, democratic governance or democratic elements in international relations will still continue to operate influentially in a way to formulate more positive international democratic practice.