The Arab Spring and the Question of Legality of Democratic Revolution in Theory and Practice: A Perspective Based on the African Union Normative Framework

Abstract

Traditional rules of international law do not recognize a positive right of revolution, nor a prohibition thereof as the relevant rules merely place the legality of revolutions in their effectiveness. However, the recent upsurge in democratically inspired revolutions has provided high currency to proposals that seek to re-evaluate the position of international law towards revolutions. Proponents of the theory of democratic revolution have sought to establish the legality of revolutions on an elevated normative ground using the lofty ideals of human rights and democratic governance and ultimately suggesting the existence of a positive right of democratic revolution under international law. Focusing on the Arab spring and the normative framework of the African Union, this article argues that the existing (emerging) human rights and democratic norms do not necessarily provide any distinct normative justifications for democratic revolutions beyond the legality that could be possibly established on the basis of traditional norms of international law. While the study recognizes emerging norms that represent a shift away from the effectiveness doctrine, it is observed that the pro-revolutionary implications of the norms are not as obvious as their importance as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments. The article concludes with the observation that the premium placed on democratic elections in the various normative instruments underscores the centrality of elections – and, alas, not revolutions – as the primary means through which the people's constitutive power (pouvoir constituant) is to be expressed.

Whither Democratic Legitimism?: Contextualizing Recent Developments in the Recognition and Non-recognition of Governments

“…10 It is sometimes suggested that the pattern of recent Security Council's Chapter VII edicts in response to internal conflicts establishes a norm against recourse to violence to resolve internal political disputes. 11 However, absent an antecedent determination about the valid terms of public order in a territory, this is not conceivable: is it resistance to de facto territorial authority, or suppression of that resistance, that counts as the "recourse to violence"? The Security Council can, to be sure, make ad hoc determinations to freeze a particular status quo (much as the international territorial status quo is frozen by the UN Charter), against which all use of force counts as "violence," but such extemporary decrees are a far cry from constituting a generally applicable jus ad bellum for internal conflict.…”

Multi-level Approaches to Countering Unconstitutional Changes of Government in Africa: Implications for the Rule of Law

“…While there is a burgeoning literature on the African Charter on Democracy, Elections and Governance (ACDEG), and on the specific issue of UCGs (see for example Elvy, 2013; Engel, 2010; Glen, 2012; Leininger, 2014; Obse, 2014; Vandeginste, 2013; Wiebusch, 2016), and while here and there issues of subsidiarity, norm collisions, institutional rivalries, etc. pop up (see for example Lanz and Gasser, 2013; Nathan, 2013, 2016), the topic has rarely been systematically explored from the perspective of MLG.…”