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Critically consider Thomas Franck’s argument about an emerging right to democratic governance in international law with particular reference to the recent Palestinian elections returning a Hamas governing authority

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  1. Introduction.
  2. Emergence of a right to democratic governance.
    1. Franck's argument.
    2. Focus on electoral rights.
  3. The issue raised by the Palestinian elections returning a Hamas governing authority.
    1. The Palestinian election was perfectly valid.
    2. Incoherence of the right to democratic governance as a right to 'free and fair' elections.
    3. Franck's right to democratic governance as 'Low-intensity democracy'.
  4. The emerging right to democratic governance: Anything but value-free.
    1. Far too much embedded in its normative underpinnings.
    2. Confusion of international law with politics.
  5. Conclusion.
  6. Bibliography.

?Democratic tradition involves a richly evolving collection of diverse beliefs, processes and structures that are neither easily characterized in concise terms nor summarized in a single systematic philosophy of governance? . The complexity of democratic governance could not be better put in plain words. Indeed, as the term of democracy is nowadays broadly employed, its meaning is still far less than unequivocal. While its etymology clearly implies that the governed should decide who is to govern them, its carrying out is subject to interpretation, and sometimes controversy. When Thomas Franck argued, in 1992, that a right to democratic governance was emerging, his argument was built upon a study of states' practice and of legal documents that were purporting the idea of such an evolution . However, it must not be left aside that democracy is never value-free as soon as it is proposed to be implemented in a very particular way. It is even less neutral when this particular way is presented as a Human-Right-to-be. Indeed, if such a right was to be a legal norm applicable to all, as Franck suggests it, then the notion of state's sovereignty, which is paramount, would be totally re-shaped. State recognition is based on criteria of statehood (territory, government, etc.), and internal government nomination-process is of domestic concern.

[...] Fox, "The Right to Political Participation in International Law", in Fox and Roth (eds.) Democratic Governance and International Law (2000) 48 at 83-84. One of the criteria established by Fox, to evaluate freedom and fairness of elections. Explained in Maogoto (2003). Interview of Javier Solana, EU Representative for Foreign Policy by Le Monde, Un groupe terroriste ne devient pas légitime parce qu'il a gagné des élections , January Steven A.Cook , Blame Democracy Promotion', The Washington Post July 29,06 UNC Art 2.4 Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.? (The UNGA acknowledged the proclamation of the state of Palestine in 1988). [...]


[...] This essay aims at assessing Franck's argument about the emergence of a right to democratic governance in several respects. Hence, I shall establish how this concept he described in 1992 has been developed and declined into a right to electoral rights over the past fifteen years. The weaknesses of the thesis as it evolved will be emphasised with respects to the 2006 Palestinian elections, in order to show how thin and fragile the supposedly emerging norm has become. Finally, I shall consider why such a right can't be more than what it has become a right to free and fair elections; and yet how much it need be. [...]


[...] The issue raised by the Palestinian elections returning a Hamas governing authority The Palestinian Election was perfectly valid On January the 25th, in 2006, seventy-five percent of the Palestinian voters went to the polls, under the careful watch of about nine hundreds international observers that testified of the ?honesty in vote tabulation?[20]. Hamas obtained 76 seats over 132, whereas Fattah only got 43. In brief, these elections were as free and fair as expected by the international community, and Hamas as a result should have been welcomed as a democratic government-to-be. [...]

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