The Utility of the Emerging Right to Democratic Governance in a Mobile World

University essay from Lunds universitet/Juridiska institutionen

Abstract: This thesis seeks to investigate whether the emerging right to democratic governance, as conceptualised by Thomas Franck, is of any use to the large numbers of migrants within and arriving to the EU. Focusing on Europe, it does this by assessing whether the right can be considered a human right, using the lens of universality and inalienability: it assesses whether migrants still have the right to democratic governance once they leave their country of citizenship. After mapping out the three generations of human rights that make up Franck’s formulation – namely self-determination, freedom of expression and free and fair elections – the thesis focuses on the right to free and fair elections is derived from: the right to vote. This right is decisive for the right to democratic governance being a human right as if there is no human right to vote, the formulation of the right to democratic governance as a human right becomes insufficient. Approaching the right to vote from an international law perspective, the thesis finds that there is no human right to vote. Before dismissing the utility of the right to democratic governance for migrants it goes on to investigate whether there is a human right to citizenship that will confer voting rights on to the migrant citizen. This is done in two stages, first by assessing international treaty law and then by assessing the jurisprudence of the European Court of Human Rights (“the ECtHR”) and the state practice of European states. Determining that there is also no human right to citizenship, the thesis assesses whether it is appropriate to predict that such a right will soon emerge, in view of the changeable nature of international law. Concluding that it is difficult for such predictions, the thesis calls for ideas of belonging and limits of political communities to change to meet the needs of an increasingly mobile world. Without rethinking these ideas the emerging right to democratic governance will remain useless to migrants.

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