Almost all definitions of good governance used by international bodies list public participation as a constitutive element (Rudolf 2006, 1020). It is not limited to a democratic system, although democracy is often referred to as being helpful. Documents of the last decade put an emphasis on democracy as being based on participation, yet fall short of pronouncing a legal obligation to democracy.19 In this vein, the World Summit called democracy a “universal value based on the freely expressed will of the people” and its “full participation in all aspects of their lives”20 Thus, the international community did not affirm the more extensive approach of the Commission on Human Rights. In a contested resolution, the commission had declared full popular participation to presuppose that all citizens can “take part in the government of their country, directly or through freely chosen representatives,” that the “will of the people shall be the basis of the authority of Government and that this shall be expressed in periodic and genuine elections,” that political equality is essential to democracy, and that popular participation and control “must be realized through a framework of accessible, representative and accountable institutions subject to periodic change or renewal”21
Despite the reluctance of states to commit themselves to these elements, public international law already contains the legal bases for the obligation to realize them: the right of peoples to self-determination (article 25, ICCPR) and the principle of equality, as enshrined in articles 2.1 and 26 of the ICCPR. The right to self-determination is the right of a people to determine freely its political status as well as its economic and social system.22 Today, it is recognized that it also has an internal dimension, that is, that every people has the right to participate in the decision-making process of its state (Nowak 2005, article 1, marginal no. 34). Moreover, the right to self-determination has a permanent character; therefore, it is not “consumed” by its exercise, but requires expression in a continual process (Nowak 2005, article 1, marginal nos. 17-18). Through both features, self-determination has democratic elements. Article 25 of the ICCPR is more precise in that it guarantees the right to take part in the conduct of public affairs, to vote and to be elected, and to have access to the public service of one’s own state. Thus, the provision goes beyond the electoral process as a means of participation. Finally, public participation in the conduct of the state’s affairs is a requirement flowing from the principle of equality: if all human beings are “born free and equal in dignity and rights” (article 1, Universal Declaration of Human Rights), if discrimination based on personal features such as race, gender, or religion is prohibited (article 2.1, ICCPR), and if all are equal before the law (article 26, ICCPR), then no person has the right to impose his or her will on others arbitrarily. Consequently, everyone must have a say in the establishment of general restrictions of a person’s freedom of action and in the determination of the course of the society he or she lives in.
The obligation of states to provide for public participation exists also for states not parties to the ICCPR. This conclusion is warranted because self-determination and the basic equality of all human beings irrespective of race, gender, or religion are binding rules of customary law. However, as Article 25 of the ICCPR does not have an equivalent under customary law, these states are not obliged to ensure participation through elections, but may apply other procedures for establishing the will of the people.