Revisiting the human right to democracy: a positivist analysis

In this article I investigate from the perspective of legal positivism whether a human right to democracy exists. Based on the analysis of various universal and regional human rights treaties, I argue that such a right is indeed recognised under international law. The human right to democracy obliges states to let citizens take part in political decision-making and to conduct free elections, while it allows for a diversity of political systems executing these obligations. In response to the argument that the human right to democracy is far distant from political reality, I argue that while many states are governed by non-democratic regimes, they do not contest the validity of the democratic norm. Moreover, the human right to democracy can be instrumental in addressing flaws in democratic systems or the absence of democracy altogether. The article provides examples of how this works in practice by discussing the case law of various judicial and quasi-judicial human rights review bodies. I conclude by arguing that the human right to democracy as recognised by international law fits well within Benjamin Gregg’s normative framework of The Human Rights State (2016).