A Human Right to Democracy in the Inter-American System? Examining Guatemala’s Request for an Advisory Opinion

[Angel Cabrera is a Mexican human rights lawyer and an Assistant Professor of international law and human rights at the University of Washington Tacoma. He holds an S.J.D. and LL.M. from Harvard Law School and an LL.B. from the University of Guadalajara.]

In a request submitted last December, Guatemala asked the Inter-American Court of Human Rights (the “Court”) to issue an Advisory Opinion on the “Right to Democracy.” While the request raises multiple legal questions, the main point under consideration is whether States are required to guarantee democracy as a human right, and if so, what is the scope of protection of said right.

This request arrives at a critical moment. Across the Americas, the legitimacy of democratic governance is rapidly deteriorating as governments slide towards authoritarianism. In this context, the Court’s opinion will impact the way international organizations and transnational networks influence the consolidation or further erosion of Latin-American democracies.

While Guatemala’s request is motivated by current events, the idea of recognizing a Right to Democracy has been debated, questioned, and disputed for a long time. This discussion, however, has engaged primarily with the universal system. The Court’s Advisory Opinion will be the first time this issue is directly addressed through the lenses of Inter-American human rights law; a regional system where democracy enjoys a reinforced legal status. This entry highlights the importance of considering this distinction and explores potential legal grounds that could establish that a right to democracy exists in the Inter-American system. 

Distinct Histories: Democracy in the Universal & Inter-American System

Democracy has long been a contentious concept within the United Nations (UN)—so much so that the word was deliberatively left out of the UN Charter. It was until the end of the Cold War when scholars first argued that a right to democracy could “emerge” in international law.  

Initially, this idea gained some traction and in 1999, the UN Human Rights Commission adopted a resolution openly calling for the “promotion of the right to democracy”. However, this emerging consensus began to fracture as some member States—primarily from the Global South—voiced concerns about the potential misuses of this right, especially given the “determination of a number of industrialized powers to manipulate a so-called right to democracy in order to legitimize aggression” (page 8). These concerns were compounded by the events of 9/11 and the subsequent war on terror, which ultimately derailed the efforts of recognizing democracy as a human right.

As a result, the term “right to democracy” disappeared from the UN. Even if democratic principles remained, member-States veered toward different articulations. Instead of promoting a right to democracy, the UN General Assembly shifted to advance “a democratic and equitable international order”—wording that was also adopted, and reiterated by the Human Rights Council. 

The trajectory of democracy within the Inter-American System is decidedly different. From its creation, democracy found a strong normative basis in the Organization of American States (OAS). Unlike the UN Charter, the original 1948 text of the OAS Charter established “representative democracy” as a principle shared by all member-States. 

This commitment was then reaffirmed through multiple Protocols that amended the OAS Charter. First, the 1967 Protocol of Buenos Aires, stressed the importance of achieving the “consolidation of the democratic system”. Then, in 1985, the Protocol of Cartagena held democracy as an “indispensable condition” for the region’s development. In 1992 the Protocol of Washington created a mechanism to suspend undemocratic States. And finally, in 2001, member-States unanimously adopted the Inter-American Democratic Charter (the Democratic Charter), which explicitly recognized that the “peoples of the Americas have a right to democracy”.

This consensus around democracy is also reflected in the practice of the OAS organs. In 1998, the Inter-American Juridical Committee recognized democracy as a basic component of Inter-American law. In 2009, the General Assembly decided to suspend Honduras due to alterations in its internal democratic order. Most importantly, in its Advisory Opinion OC-28/21 (para 29) the Court referred to the Democratic Charter as an “interpretative text” to analyze the obligations of States under the American Convention on Human Rights (American Convention). 

Overall, this history sets the status of democracy within the Inter-American system apart from the broader debate in international law. This difference could be a decisive factor in swaying the Court away from skeptical views, and towards recognizing that a right to democracy exists within the Inter-American System. 

Possible Grounds for a Right to Democracy in the Inter-American System

In addressing Guatemala’s request, the Court will need to weigh the consensus that OAS member states have built around democratic norms—both the American Convention and established case law will require the judges to do so. While the Court could still reject the existence of a right to democracy, at least three legal grounds may steer the judges toward recognizing such entitlement.

First, the rules of interpretation established in Article 29(d) of the American Convention may compel the judges to give effect to Article 1 of the Democratic Charter—which explicitly recognizes the right to democracy.

Article 29(d) of the American Convention restricts the Court from adopting interpretations that limit the effect of the American Declaration on the Rights and Duties of Man “and other international acts of the same nature”. Recently, the Court suggested that this category includes the Democratic Charter—in its Advisory Opinion 32/25 (paras 40-41), the Court affirmed that OAS member-States are equally bound by both the American Declaration and the Democratic Charter. Building on this precedent, the Court could find that the American Convention must give effect to Article 1 of the Democratic Charter. This would not be entirely novel. In the past, the interpretative rules set by Article 29 of the Convention led the Court to recognize rights protected by other instruments. For example, in Yakye Axa v. Paraguay, the Court recognized the right to communal property based on ILO Convention No. 169.

Second, the judges could derive a right to democracy from a joint interpretation of other rights linked to democratic governance—such as, Articles 13 (Freedom of Expression), 15 (Right of Assembly), 16 (Freedom of Association) and 23 (Right to Participate in Government) of the American Convention. 

Given that the effective realization of these rights presupposes the existence of a democratic regime, the Court could infer that a right to democracy is necessarily subsumed in the American Convention. This aligns with established case law. In the past, this type of inference-based analysis led the Court to recognize rights not directly mentioned in the Convention. For example, in Barrios Altos v. Peru (paras 47-49) the Court relied on a joint interpretation of Articles 8 and 25 to establish the existence of the right to truth. 

Third, the Inter-American doctrine on economic, social, and cultural rights could lead the Court to recognize democracy as a right protected under Article 26 of the American Convention in relation to Articles 45(f), 34 and 3 of the OAS Charter—which enshrine democracy as a principle of the OAS. 

Since Lagos del Campo v. Peru, the Court has affirmed that the American Convention protects socioeconomic rights derived from the standards set forth in the OAS Charter. This interpretative method has led to the recognition of multiple rights not explicitly enumerated in the American Convention, such as the rights to health, social security, and a healthy environment. Given that the OAS Charter has long upheld democracy as a regional standard, this doctrine could direct the judges to affirm a right to democracy. In fact, in a recent opinion (paras 460-470), the Court applied this reasoning to derive a right to democratic procedures in the context of the climate emergency. 

These three legal grounds are not mutually exclusive. Any and all of them could compel the judges to recognize a right to democracy. If they do so, the Court will then face the challenging task of outlining the scope of this right—a question that carries both opportunities and serious risks. 

The Promise and Perils of Recognizing a Right to Democracy

Throughout its history, the Court has relied on its advisory jurisdiction to craft normative standards that aim to help States confront regional challenges—most recently, on pressing issues like environmental degradation and climate change. Amidst an ongoing democratic crisis, the Court will likely perceive Guatemala’s request as an opportunity to develop standards that could reinforce democratic governance in the Americas. If the Court decides to seize this potential by recognizing democracy as a human right, it will have to consider the risks such a norm implies.

One of the main criticisms raised against the right to democracy is that it could easily undermine the principle of self-determination. As the UN Human Rights Council has noted, “democracy does not belong to any country”, and a right to democracy could easily be construed in a way that imposes a rigid political system over different peoples. Indeed, Guatemala’s request seems to push in that direction. Besides asking if a right to democracy exists, Guatemala raised numerous questions about specific duties such a right would imply—for instance, concerning mandatory gender equality, compulsory human rights education, and social media regulation.

If the Court were to address all the questions posed by Guatemala, it would certainly run the risk of sanctioning a narrow vision of democracy. To minimize this peril, the Court could decline overly specific questions and opt instead for a more open-ended approach that affirms a right to democracy in a way that allows diverse forms of implementation—much as the Court did when addressing the issue of independent candidacies in Castañeda Gutman v. Mexico (para 162). 

However, perhaps the greatest danger surrounding the right to democracy is not the risk of imposition but the risk of irrelevance. Inter-American human rights law already protects the basic institutions of a representative liberal democracy—from the right to judicial review of the political process  (para 100), to the protection of a pluralist party system (paras 97-98). If the Court were to define the scope of a right to democracy by merely restating existing norms, it would reduce this new right to a consolidation of established standards. While such legal compilation would have some value, it risks rendering the new right inconsequential in addressing the region’s current predicaments.

Latin America’s crisis of democracy is fueled by widespread discontent with existing democratic institutions, which have not only failed to constrain authoritarians, but have also fallen short in delivering socioeconomic development. To meet this moment, the Court would need to define the right to democracy in a way that not only reaffirms the importance of liberal values, but also creates space to renew its institutional forms—in other words, the Court will need to nurture the possibility of democratizing democracy. 

This call for democratic renewal has yet to make its way into human rights law, but it is not totally abstract. International organizations like the UN Development Program are already promoting institutional innovation, and have identified promising practices in Mexico, Colombia, and beyond. The Court could see this Advisory Opinion as an opportunity to develop human rights standards attuned to these efforts. For example, the Court could rely on Article 26 of the American Convention to recognize that the right of democracy entails a duty of progressive realization— to gradually improve democratic institutions in ways that enhance the direct and meaningful participation of citizens in public affairs. This hypothetical approach would expand upon existing standards while preserving the flexibility needed to avoid imposing a strict model of democracy.

Naturally, an Advisory Opinion cannot solve the region’s democratic crisis. Yet the Court’s response to Guatemala’s request will reshape how regional institutions and advocacy networks confront ongoing democratic erosion. Unlike the universal system, Inter-American law provides a more fertile ground for recognizing democracy as a human right. Should the Court decide to seize this potential, it must tread carefully between the risk of normative imposition and the risk of rendering the right irrelevant to the current moment. Ultimately, the right to democracy could become a powerful instrument for peoples across the Americas to reclaim the future of their democracies.