International Democracy Documents : A Compilation of Treaties and Other Instruments [1 ed.] 9789004274624, 9789004270275

Citation preview

International Democracy Documents

International Democracy Documents A Compilation of Treaties and Other Instruments Edited by

Frithjof Ehm Christian Walter

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data International democracy documents : a compilation of treaties and other instruments / edited by Frithjof Ehm, Christian Walter.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-27027-5 (hardback : alk. paper) -- ISBN 978-90-04-27462-4 (e-book : alk. paper) 1. International law and human rights. 2. Human rights. 3. Democratization. 4. Democracy. 5. Rule of law. I. Ehm, Frithjof, editor. II. Walter, Christian, editor.  KZ1266.I55 2015  342’.04--dc23 2015013880

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-27027-5 (hardback) isbn 978-90-04-27462-4 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface   xv Selected Abbreviations   xvi Copyright Acknowledgments   xVII General Introduction   1 I Objectives and Structure of the Book   1 II History of Democracy in International Law   3 1 From the Recognition of the United States of America in 1778 until the Second World War   3 2 The Time of the Cold War   6 3 The Time after 1989/1990   8 III Specific Democracy Issues in International Documents   12 1 Universal and Regional Perceptions of Democracy   12 a Global Level   14 b Regional Level   17 c Conclusion   21 2 The Triangle of Democracy, Human Rights and the Rule of Law   22 3 Democracy and Education   26 4 Elections and Election Observation   27 5 The Role of Political Parties   30 6 The Role of the Opposition in a Democratic Government   31 7 Undemocratic Change of Government   31 8 Building of Democratic Institutions – Transition to Democracy   33 IV Conclusion and Future Perspectives   34

PART 1 Global Documents A United Nations   39 Introduction   39 1 Universal Declaration of Human Rights (1948)   42 2 International Covenant on Civil and Political Rights (1966)   48 3 The Vienna Declaration and Programme of Action – World Conference on Human Rights (1993) – Excerpts   53

vi

contents

4 An Agenda for Democratization – Report of the Secretary-General (1996)   56 5  g a-Res. 55/2. United Nations Millennium Declaration (2000)   97 6  g a-Res. 55/96. Promoting and Consolidating Democracy (2000)   98 7  g a-Res. 59/201. Enhancing the Role of Regional, Subregional and Other Organizations and Arrangements in Promoting and Consolidating Democracy (2004)   104 8 In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary-General (2005)   108 9 ga-Res. 60/1. World Summit Outcome (2005)   113 10  ga-Res. 60/164. Respect for the Principles of National Sovereignty and Diversity of Democratic Systems in Electoral Processes as an Important Element for the Promotion and Protection of Human Rights (2005)   115 11  g a-Res. 66/285. Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies (2012)   117 12 ga-Res. 67/18. Education for Democracy (2012)   120 13  g a-Res. 68/164. Strengthening the Role of the United Nations in Enhancing Periodic and Genuine Elections and the Promotion of Democratization (2013)   123 14  g a-Res. 68/175. Promotion of a Democratic and Equitable International Order (2013)   129 B unesco   133 Introduction   133 15 Declaration of Montevideo: Democratic Culture and Governance – (1990)   135 16 World Plan on Education for Human Rights and Democracy, and Contributions to the Preparation of a Declaration on Academic Freedom – (1993)   138 17 Declaration and Integrated Framework of Action on Education for Peace, Human Rights and Democracy – (1995)   143 C Community of Democracies   148 Introduction   148 18 Warsaw Declaration (2000)   149 19 Criteria for Participation and Procedures (2000)   153 20 Seoul Plan of Action (2002)   157 21 Santiago Commitment (2005)   160

contents

vii

22 Bamako Consensus (2007)   165 23 Ulaanbaatar Declaration (2013)   175 D Inter-Parliamentary Union   181 Introduction   181 24 The Implementation of Educational and Cultural Policies Designed to Foster Greater Respect for Democratic Values – Inter-Parliamentary Conference (1993)   182 25 Declaration on Criteria for Free and Fair Elections – Inter-Parliamentary Council (1994)   185 26 Ensuring Lasting Democracy by Forging Close Links between Parliament and the People – Inter-Parliamentary Conference (1997)   190 27 Universal Declaration on Democracy – Inter-Parliamentary Council (1997)   193 28 Guidelines on the Rights and Duties of the Opposition in Parliament – Representatives of African Parliaments (1999)   198 29 The Prevention of Military and Other Coups against Democratically Elected Governments and against the Free Will of the Peoples Expressed through Direct Suffrage, and Action to Address Grave Violations of the Human Rights of Parliamentarians – Inter-Parliamentary Conference (2000)   204 30 Parliament’s Role in Strengthening Democratic Institutions and Human Development in a Fragmented World – Inter-Parliamentary Conference (2003)   207 31 Bridging the Democracy Gap in International Relations: A Stronger Role for Parliaments – Second World Conference of Speakers of Parliament (2005)   212 32 The Importance of Civil Society and Its Interplay with Parliaments and other Democratically Elected Assemblies for the Maturing and Development of Democracy – Inter-Parliamentary Assembly (2005)   214 33 Securing Global Democratic Accountability for the Common Good – Conference of Speakers of Parliament (2010)   219 34 Transparency and Accountability in the Funding of Political Parties and Election Campaigns – Inter-Parliamentary Assembly (2011)   224 35 Chair’s Summary of the Debate: “The ipu at 125: Renewing Our Commitment to Peace and Democracy” – Inter-Parliamentary Assembly (2014)   228

viii

contents

PART 2 Transregional Documents Introduction   233 A Organisation Internationale de la Francophonie   235 36 Bamako Declaration (2000)   235 B The Commonwealth   243 37 Millbrook Commonwealth Action Programme on the Harare Declaration (1995)   243 38 Aso Rock Commonwealth Declaration on Development and Democracy: Partnership for Peace and Prosperity (2003)   246 39 Charter of the Commonwealth (2013)   247

PART 3 Regional Documents A Africa   253 Introduction   253 I African Union/Organisation of African Unity   256 40 Decision on Unconstitutional Changes in Member States – oau Council of Ministers (1999)   256 41 Decision [on Unconstitutional Changes of Government] – oau Assembly of Heads of State and Government (1999)   257 42 Declaration on the Framework for an oau Response to Unconstitutional Changes of Government – oau Assembly of Heads of State and Government (2000)   258 43 Decision on Unconstitutional Changes of Government in Africa – oau Assembly of Heads of State and Government (2000)   263 44 The New Partnership for Africa’s Development (nepad) – A Programme of The African Union (2001) – Excerpts   264 45 African Union Declaration on the Principles Governing Democratic Elections in Africa – oau Assembly of Heads of State and Government (2002)   270 46 Declaration on Democracy, Political, Economic and Corporate Governance – au Assembly of Heads of State and Government (2002) – Excerpts   276

contents

ix

47 African Charter on Democracy, Elections and Governance – au Assembly of Heads of State and Government (2007)   280 48 Resolution on Electoral Processes and Participatory Governance in Africa – African Commission on Human and People’s Rights (2011)   296 49 Resolution on the Unconstitutional Change of Governments – African Commission on Human and People’s Rights (2012)   298 II Economic Community of West African States   300 50 Protocol A/SP1/12/01 on Democracy and Good Governance (2001)   300 III Economic Community of Central African States   315 51 Bata Declaration for the Promotion of Lasting Democracy, Peace and Development in Central Africa (1998)   315 IV International Conference on the Great Lakes Region   319 52 Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region (2004) – Excerpts   319 53 International Conference on the Great Lakes Region Protocol on Democracy and Good Governance (2006) – Excerpts   324 B The Americas   336 Introduction   336 i Organization of American States   340 54 Charter of the Organization of American States (1948) – Excerpts   340 55 Santiago Commitment to Democracy and the Renewal of the Inter-American System – General Assembly (1991)   344 56  a g/res. 1080 (xxi-O/91) – Representative Democracy – General Assembly (1991)   347 57 Declaration of Managua for the Promotion of Democracy and Development – General Assembly (1993)   348 58 Inter-American Democratic Charter – General Assembly (2001)   352 59 Declaration of Santiago on Democracy and Public Trust: A New Commitment to Good Governance for the Americas – General Assembly (2003)   361

x

contents

60 Declaration of Nuevo León – Special Summit of the Americas (2004) – Excerpts   364 61 Declaration of Quito on Social Development and Democracy, and the Impact of Corruption – General Assembly (2004) – Excerpts   370 62 Promotion and Strengthening of Democracy – General Assembly (2004)   372 63 Declaration of Florida: The Benefits of Democracy – General Assembly (2005)   377 64 Declaration of Mar del Plata. Creating Jobs to Fight Poverty and Strengthen Democratic Governance – Fourth Summit of the Americas (2005) – Excerpts   382 65 Declaration of Medellin: Youth and Democratic Values – General Assembly (2008) – Excerpts   387 66 Social Charter of the Americas – General Assembly (2012) – Excerpts   394 67 Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter – General Assembly (2013)   397 II Community of Latin American and Carribbean States/ Rio Group   402 68 Acapulco Commitment to Peace, Development and Democracy – Rio Group (1987) – Excerpts   402 69 Asunción Declaration signed at the Eleventh Summit of Heads of State and Government of the Rio Group – Rio Group (1997) – Excerpts   405 70 Declaration on the Defence of Democracy – Rio Group (1997)   408 71 Cartagena Commitment to Democracy – Rio Group (2000)   409 72 The Cusco Consensus “Democratic Governance: Defense and Consolidation of Democracy” – Rio Group (2003) –Excerpts   410 73 Special Declaration about the Defense of Democracy and Constitutional Order in the Community of Latin American and Carribean States (celac) (2011)   414 III Southern Common Market   416 74 Ushuaia Protocol on Democratic Commitment in the Southern Common Market, the Republic of Bolivia and the Republic of Chile – mercosur inter alia (1998)   416

contents

xi

IV Central American Integration System   419 75 Alliance for the Sustainable Development of Central America (1994) – Excerpts   419 76 Framework Treaty on Democratic Security in Central America (1995) – Excerpts   423 V Andean Community   432 77 Additional Protocol to the Cartagena Agreement “Andean Community Commitment to Democracy” (1998)   432 78 Declaration about Democracy and Integration (1998)   435 79 Machu Picchu Declaration on Democracy, the Rights of Indigenous Peoples and the Fight against Poverty (2001) – Excerpts   437 80 Andean Charter for the Promotion and Protection of Human Rights (2002) – Excerpts   441 VI Union of South American Nations   446 81 Additional Protocol to the Constitutive Treaty of the Union of South American Nations on Commitment to Democracy – unasur (2010)   446 C Arab Region and Asia   449 Introduction   449 82 Sana’a Declaration on Democracy, Human Rights and the Role of the International Criminal Court (2004)   451 83 Arab Charter on Human Rights – League of Arab States (2004) – Excerpts   455 84 saarc Charter of Democracy (2011)   457 85 asean Human Rights Declaration (2012) – Excerpts   459 D Europe   463 Introduction   463 I Council of Europe   467 86 Statute of the Council of Europe (1949) – Excerpts   467 87 Declaration Regarding Intolerance – a Threat to Democracy – Committee of Ministers (1981)   469 88 Resolution 800 on the Principles of Democracy – Parliamentary Assembly (1983)   471 89 Instruments of Citizen Participation in Representative Democracy – Parliamentary Assembly (1997)   475

xii

contents

90 Impact of Electoral Systems on the Political Process – Standing Committee (2000)   478 91 Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe – Committee of Ministers (2002)   479 92 Abolition of Restrictions on the Right to Vote – Parliamentary Assembly (2005)   481 93 Resolution 1547 – State of Human Rights and Democracy in Europe – Parliamentary Assembly (2007)   484 94 Indicators for Media in a Democracy – Parliamentary Assembly (2008)   492 95 Electronic Democracy – Parliamentary Assembly (2009)   496 96 Expansion of Democracy by Lowering the Voting Age to 16 – Parliamentary Assembly (2011)   501 97 The Crisis of Democracy and the Role of the State in Today’s Europe – Parliamentary Assembly (2012)   503 II Council of Europe – Venice Commission   507 98 Code of Good Practice in Electoral Matters – Guidelines and Explanatory Report (2002)   507 99 Report on the Role of the Opposition in a Democratic Parliament (2010)   540 100 Guidelines on Political Party Regulation by osce/odihr and Venice Commission (2010)   587 iii European Union   651 101 Declaration on Democracy (1978)   651 iV Organization for Security and Co-operation in Europe (osce)/  Conference on Security and Co-operation in Europe (csce)   652 102 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce (1990) – Excerpts   652 103 Charter of Paris for a New Europe – CSCE (1990) – Excerpts   658 V Commonwealth of Independent States   662 104 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (2002)   662

contents

xiii

VI  g uam Organization for Democracy and Economic Development   679 105 The Chisinau Declaration of the guuam Heads of States “In the Name of Democracy, Stability and Development” (2005)   679 106 Charter of Organization for Democracy and Economic Development (2006) – Excerpts   682

part 4 Miscellaneous Documents Introduction   687 107 Ulaanbaatar Declaration – International Conference of New or Restored Democracies – 5th International Conference (2003)   688 108 International Conference of New or Restored Democracies – Doha Declaration – 6th International Conference (2006) – Excerpts   696 109 Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations and Code of Conduct for International Election Observers (2012)   700

Preface The idea for co-editing this collection of documents on international standards for democracy was developed during a lunch in spring 2013 when we realized that we had a common interest in the subject matter of international democracy and felt that there was a practical need for a briefly annotated compilation of the most important instruments. Given the vast amount of material, any selection necessarily remains subjective. We have tried our best to pick out the most prominent and the most widely used documents. Wherever possible we have opted for the full text of the respective document. However, in a number of cases we had to limit ourselves to reproducing excerpts in order to keep a clear focus on the issue of democracy and in the interest of keeping the size of the book within manageable limits. Hopefully, the collection thus gives a representative overview on global, transregional and regional standards for democracy. The publication of this book required support from various institutions and persons. Most of all, we are grateful to the different international organizations for their consent to publish the selected documents in this collection. In establishing these contacts we were supported by Ingeborg Neber-Germeier and Stefan Herrmann (both Munich). Stefan Herrmann was also of great help in the technical process of compiling and standardizing the different documents. Stefan Schäferling (Munich) provided for the necessary native speaker check on our introductions and annotations. Last but not least, both editors have very much enjoyed the cooperation and courtesy of BRILL/NIJHOFF and are especially grateful to Ingeborg van der Laan and Saskia van der Knaap (both Leiden) for their constant help. All remaining mistakes are, of course our own, and critical resonance and suggestions for additions are most welcome ([email protected] or [email protected]). Brussels and Munich in May 2015, Frithjof Ehm Christian Walter

Selected Abbreviations adc African Charter on Democracy, Elections and Governance asean Association of Southeast Asian Nations au African Union can Andean Community cd Community of Democracies celac Community of Latin American and Carribean States chs The Council of the Heads of State CoE Council of Europe csce Conference on Security and Co-operation in Europe ec European Council eccas Economic Community of Central African States echr European Convention for the Protection of Human Rights and Fundamental Freedoms ecowas Economic Community Of West African States eu European Union ga General Assembly GA/RES General Assembly Resolution guam Organization for Democracy and Economic Development iccpr International Covenant on Civil and Political Rights icglr International Conference on the Great Lakes Region icnrd International Conference of New or Restored Democracies ipu Inter-Parliamentary Union mercosur Mercado Común del Cono Sur (Southern Common Market) mpepil Max Planck Encyclopedia of Public International Law nepad The New Partnership for Africa’s Development oas Organization of American States oau Organisation of African Unity odihr Office for Democratic Institutions and Human Rights osce Organization for Security and Co-operation in Europe S/RES Security Council Resolution saarc South Asian Association for Regional Cooperation sica Central American Integration System udhr Universal Declaration of Human Rights un United Nations unesco United Nations Educational, Scientific and Cultural Organization unmik United Nations Interim Administration Mission in Kosovo untaet United Nations Transitional Administration in East Timor

Copyright Acknowledgments Docs. 1–14: United Nations, http://www.un.org/en/documents/ Docs. 15–17: unesco, http://www.unesco.org/new/en/unesco/resources/ publications/ Docs. 18–23: Community of Democracies, https://www.community-democracies .org/ Docs. 24–35: Inter-Parliamentary Union, http://www.ipu.org/english/pblctns .htm Doc. 36: Organisation Internationale de la Francophonie, http://www .francophonie.org/-Publications-.html Docs. 37–39: The Commonwealth, http://thecommonwealth.org/ Docs. 40–49: African Union/Organisation of African Unity, www.au.int Doc. 50: Economic Community of West African States, http://www.ecowas .int/ Doc. 51: Economic Community of Central African States, http://www.ceeac -eccas.org/ Docs. 52–53: International Conference on the Great Lakes Region, http://www .icglr.org/ Docs. 54–67: Organization of American States, http://www.oas.org/en/informa tion_center/default.asp Docs. 68–73: Community of Latin American and Caribbean States, Rio Group, http://www.celacinternational.org/ Doc. 74: mercosur, http://www.mercosur.int/ Docs. 75–76: Central American Integration System, http://www.sica.int/ Docs. 77–80: Andean Community, http://www.comunidadandina.org/ Doc. 81: Union of South American Nations, http://www.unasursg.org/ Doc. 82: Government of Yemen, http://www.yemen.gov.ye/portal/ Doc. 83: League of Arab States, http://www.lasportal.org/ Doc. 84: South Asian Association for Regional Cooperation, http://www .saarc-sec.org/ Doc. 85:  Association of Southeast Asian Nations, http://www.asean.org/ resources Docs. 86–99, 107: Council of Europe, http://www.coe.int/ Doc. 100: Council of Europe/osce Doc. 101:  European Union, 2004–2015, http://publications.europa.eu/; Reproduction is authorized, provided the source is acknowledged, unless otherwise stated. Where prior permission must be obtained for the reproduction or use of textual and multimedia information

xviii

copyright acknowledgments

(sound, images, software, etc.), such permission shall cancel the abovementioned general permission and indicate clearly any restriction on use. Doc. 102–103: Organization for Security and Co-operation in Europe, http://www .osce.org/resources Doc. 104: Commonwealth of Independent States, http://www.cis.minsk.by/ Docs. 105–106: Organization for Democracy and Economic Development, http:// www.guam-organization.org/ All quoted websites were checked on 04 May 2015.

General Introduction i

Objectives and Structure of the Book

Since the landmark article “The Emerging Right to Democratic Governance” by Thomas M. Franck1 hundreds of books and articles have been published over the last two decades about democracy and international law.2 The literature concerning this topic has truly flourished. A possible reason for this is the fact that there is hardly any area of international law, which has not been affected by the growing interest in the role of democracy. However, there is no international collection that brings together the most important treaties, soft law documents and policy papers that have been produced during this period. This lacuna is astonishing, because democracy is part of the inseparable and steadfast triangle, trilogy, trinity, or triumvirate “democracy, human rights and the rule of law” (see also p. 22 et seq. below). Democracy is the cornerstone of many national and international political and legal systems. Filling this gap is the primary objective of this edition. It covers the most important international documents relating to democracy, while at the same time trying to retain a focused approach. Since many international documents address issues of democracy together with a broad range of other subjects (e.g. general human rights issues or principles governing the relations between states of a particular region) with regard to a number of documents only excerpts containing the relevant parts for democracy have been reproduced. A second aim of the collection is to illustrate regional differences concerning the concept of democracy. Thus, it tries to capture different approaches to democracy in a systematic fashion. Moreover, the collection is intended to serve as a reference book for the drafting of new provisions relating to democracy and therefore might have the function of a collection of blueprints. Finally, it pursues the goal of demonstrating that democracy has become a central issue of international law, visualized by the continuous and continuing adoption of treaties, declarations, resolutions and other policy instruments. 1 American Journal of International Law 86 (1992), 46 et seq. 2 See only Gregory H. Fox/Brad R. Roth (ed.), Democratic Governance and International Law, Cambridge 2000; Steven Wheatley, The Democratic Legitimacy of International Law, Oxford, Portland 2010; Niels Petersen, Demokratie als teleologisches Prinzip – Zur Legitimation von Staatsgewalt im Völkerrecht, Heidelberg 2009; Frithjof Ehm, Das völkerrechtliche Demokratiegebot – Eine Untersuchung zur schwindenden Wertneutralität des Völkerrechts gegenüber den staatlichen Binnenstrukturen, Tübingen 2013.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_002

2

General Introduction

It cannot be overlooked that the creation of these documents has triggered a complex debate about the notion of democracy in general, its consequences for states as the central subjects of international law, and even for international law as such. This debate cannot be completely reflected in this short introduction. But it certainly underlines the growing international importance of democracy and it creates the need for a textual compilation of the most important international documents concerning democracy. The book comprises global, transregional, regional and a small number of miscellaneous documents. An introduction at the beginning of each chapter shortly characterizes the different instruments. This includes suggestions for further reading, allowing readers to appreciate the context in which the documents were written and to find further information and analysis relating to the primary sources reprinted here. The four subsections of Part 3 (Regional Documents) always start with the organization that has the earliest date of establishment and end with the youngest one.

II History of Democracy in International Law

ii

3

History of Democracy in International Law

The integration of democracy into international law occurred in three major steps, which shall be analyzed in the following. It has to be underlined, however, that the (universal) history of democracy in international law in fact began only after the end of the Cold War. Any developments before the transformations of 1989/1990 have remained of selective or even isolated character and cannot be considered part of a general development relating to democracy at the international level. Nevertheless, the history before 1989/1990 is not only of pure academic interest, because it constitutes the basis on which the rapid development after the end of the Cold War was built. Furthermore, certain regional organizations, such as the European Union or the Council of Europe, served as additional accelerators because their preliminary steps towards democracy at the international level already started after the end of the Second World War. 1 From the Recognition of the United States of America in 1778 until the Second World War The American Declaration of Independence of 4 July 17763 and the following dispute about the recognition of the United States of America by France brought democracy into international relations for the first time. When France recognized the United States of America in two treaties of 6 February 1778,4 the United Kingdom considered this recognition to be illegal, because the United Kingdom lived at peace with France and the revolution in the American provinces did not generate special rights for France. Furthermore, the British underlined that the recognition would presuppose granting the insurgent subjects a legitimate title for their conquest, a contention that the British refused, because they regarded the revolution of the American provinces as entirely illegitimate. In their eyes the revolution constituted a usurpation amounting to treason.5 France, on the other hand countered that it was allowed to recognize the factually achieved independence of the United States without the necessity of 3 Printed in: Bernard Schwartz, The Bill of Rights, Vol. 1, New York inter alia 1971, p. 251 et seq. 4 Printed in: Wilhelm G. Grewe, Fontes Historiae Iuris Gentium, Vol. 2, Berlin, New York 1988, p. 428 et seq.; see also William Goold, The French Treaty of 1778, Portland 1890, p. 1 et seq. 5 Jochen A. Frowein, Demokratie und Völkerrecht in Europa, in: Konrad Ginther/Gerhard Hafner/Winfried Lang among others (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität, Festschrift für Karl Zemanek zum 65. Geburtstag, Berlin 1994, p. 365; as background see only Carlton F. W. Larson, The Declaration of Independence: A 225th Anniversary Re-Interpretation, Washington Law Review 76 (2001), 701 (701 et seq.).

4

General Introduction

questioning its legality. To substantiate this position France pointed out that even rightfully acquired property may be lost. It argued that similar developments happened during the English revolutions of 1648/1649 and 1688 (“Glorious Revolution”), in which complete dynasties lost their entitlement to ascend to the throne.6 With that reference to the English revolutions, France had implicitly called attention to the principle of democratic legitimacy.7 The aspect of democratic legitimacy appeared even more clearly after the deposition of Louis XVI of France in August 1792 in the recognition of the new French government by the United States of America. At that time, the United States Secretary of State, Thomas Jefferson, wrote to the American Minister to Paris, Gouverneur Morris, in an instruction: “It accords with our principles to acknowledge any Government to be rightful which is formed by the will of the nation, substantially declared”.8 With that sentence the idea of democratic legitimacy was transferred into the international context. While it is true that the particular form of government did not really matter for the United States at the time, it cannot be overlooked that apparently at least some form of popular legitimacy reflecting the will of the people, was considered to be of relevance.9 Jefferson’s idea to give “democracy” a relevant part to play in the context of the recognition of governments was picked up again at the beginning of the 20th century, when the so-called Tobar Doctrine was developed. According to this doctrine, a government was only to be recognized if it came to power by legitimate democratic means. This concept was brought forward by Carlos Tobar, Minister of Foreign Relations of Ecuador, and subsequently adopted in the General Treaty of Peace and Amity between the Central American States of 20 December 1907, which was renewed on 7 February 1923.10 However, from 1930 onwards, the treaty was step by step replaced by the so-called Estrada Doctrine,11 according to which the recognition of a government should be 6

7

8 9 10 11

With regard to that see the British-French exchange of notes concerning the recognition of the United States of America in: Wilhelm G. Grewe, Fontes Historiae Iuris Gentium, Vol. 2, Berlin, New York 1988, p. 437 et seq. Jochen A. Frowein, Demokratie und Völkerrecht in Europa, in: Konrad Ginther/Gerhard Hafner/Winfried Lang among others (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität, Festschrift für Karl Zemanek zum 65. Geburtstag, Berlin 1994, p. 365 et seq. Printed in: John B. Moore, A Digest of International Law, Vol. 1, Washington 1906, p. 120. Thomas J. Biersteker, State, Sovereignty, and Territory, in: Walter Carlsnaes/Thomas Risse/ Beth A. Simmons (eds.), Handbook of International Relations, London 2002, p. 253. Source: Suppl. to the American Journal of International Law 2 (1907), 229 (229 et seq.), and Suppl. to the American Journal of International Law 17 (1923), 117 (117 et seq.). This doctrine was named after Don Genaro Estrada, Mexican Secretary of Foreign Affairs, and was the most influential and representative instrument in the foreign policy of

II History of Democracy in International Law

5

based on its de facto existence, rather than on its legitimacy.12 The Estrada Doctrine was quite successful which may easily be explained by the fact that the worldwide number of democracies was quite low during these times.13 Furthermore, the “domestic jurisdiction” of the states was more or less regarded as all-encompassing. Another aspect that must be taken into account when looking at the history of democracy in the early 20th century is that since the beginning of the First World War the enforcement of democracy has been considered part of basic principles of American foreign policy. President Woodrow Wilson aptly expressed this on 2 April 1917 when he justified his call for a declaration of war against Germany with the words “The world must be made safe for democracy”. This statement implied that the militarism of Germany threatened democracy everywhere. He furthermore underlined that “a steadfast concert for peace can never be maintained except by a partnership of democratic nations.” Thus, the idea of a community of democracies was born even before the foundation of the League of Nations, let alone the United Nations. Another aspect of the early history of democracy in the international context relates to the observation of elections. In fact, already in 1857 a commission of Austrian, British, French, Prussian, Russian, and Turkish representatives observed a plebiscite held in the disputed territories of Moldavia and Wallachia. In the aftermath of that event Romania emerged as a new state in 1862.14 In an overall perspective it cannot be overlooked, however, that the incidents just described are highly selective. Only very rarely democracy found its way to the international plain, just in order to disappear again, often for many decades. In sum, it must be said that in these early days, democracy was of Mexico for many decades. For details see Phillip C. Jessup, The Estrada Doctrine, American Journal of International Law 25 (1931), 719 (719 et seq.). 12 With regard to the limited acceptance of the Tobar doctrine by the international community of states see only Christian Tomuschat, International Law. Ensuring the Survival of Mankind on the Eve of a New Century, Recueil des Cours de l’Académie de Droit International 281 (1999), 9 (65). 13 In 1920 there were 64 states worldwide of which 35 were democratic. Anyhow, in 1944 there were only 12 democracies left, see Eric Hobsbawm, The Age of Extremes, New York 1994, p. 112. 14 See Judith G. Kelley, Assessing the Complex Evolution of Norms: The Rise of International Election Monitoring, International Organization 62 (2008), 221 (221); Lucian Boia, Romania, London 2001, p. 79 et seq.; see also Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections, Dordrecht inter alia 1994, p. 78; Gregory H. Fox, The Right to Political Participation in International Law, in: Gregory H. Fox/Brad R. Roth (eds.), Democratic Governance and International Law, Cambridge 2000, p. 70.

6

General Introduction

minimal relevance for international relations in general, and thus even less specifically for international law. 2 The Time of the Cold War After the Second World War, the Cold War – with its fundamental sociopolitical and mental confrontation between the systems15 – prevented a greater international spread of democracy and also its integration into universal international law.16 However, despite the immense ideological antagonism between the two blocs, the term “democracy” or “democratic” was integrated in quite a number of documents that are relevant from an international law perspective. In addition, democracy became more and more entwined with the practice or the mode of behavior of states. In that regard, the changes on the global level were different to those on the regional level. Concerning documents with a global scope of application it can be said that a noticeable number of them mentioned democracy and ideas like public participation. This applies, for example, to resolutions of the un General Assembly and to instruments approved by the former un Commission on Human Rights.17 This development may be explained by the simple fact that the number of democracies worldwide increased considerably during the 1970s.18 However, when assessing these documents it must also be taken into account that the references to democracy are very often formulated in an imprecise or open way so as to leave room for different interpretations.19 Therefore, the terms “democracy” or “democratic” could mean both, the liberal Western understanding as well as the concept of people’s democracy developed within the Soviet zone of influence.20 Article 25 of the “International Covenant on 15

Dianne Otto, Challenging the “New World Order”: International Law, Global Democracy and the Possibilities for Women, Transnational Law and Contemporary Problems 3 (1993), 371 (374). 16 Julia A. Glidden, Election Monitoring, Technology and the Promotion of Democracy: A Case for International Standards, Wisconsin International Law Journal 19 (2001), 353 (354). 17 With the un General Assembly resolution A/RES/60/251 of 3 April 2006, the Commission on Human Rights was replaced by the Human Rights Council. 18 Bruce Russett, Grasping the Democratic Peace, Princeton 1993, p. 10; Jan K. Black, What Kind of Democracy Does the “Democratic Entitlement” Entail? in: Gregory H. Fox/Brad R. Roth (eds.), Democratic Governance and International Law, Cambridge 2000, p. 517 et seq. 19 Gregory H. Fox/Brad R. Roth, Introduction: The Spread of Liberal Democracy and Its Implications for International Law, in: Gregory H. Fox/Brad R. Roth (eds.), Democratic Governance and International Law, Cambridge 2000, p. 1. 20 See Christian Tomuschat, Democratic Pluralism: The Right to Political Opposition, in: Allan Rosas/Jan Helgesen/Diane Goodman (eds.), The Strength of Diversity, Dordrecht inter alia 1992, p. 28.

II History of Democracy in International Law

7

Civil and Political Rights” (→ Doc. 2), which guarantees political participation, including the right to join a political party and the right to vote, is an example in point.21 Furthermore, a limited number of un election observation missions were established during the Cold War period.22 Additionally, the un carried out some peacekeeping operations, in which the organization made (limited) attempts at fostering systems of democratic governance. However, these examples of practice do not change the fact that, with regard to the global level, democracy tended to be sidelined during the East-West Conflict. It may thus be summarized that during the Cold War period only a limited number of basic principles were established. These, however, could not unfold as more detailed legal rules given the political conditions at the global level. The predominant feature of general international law of that time thus remained its neutrality with respect to internal government structures.23 A quite different picture appears if the focus turns to the regional level. Already in the 1970s and 1980s some treaties, declarations, resolutions and other soft law instruments which address issues of democratic governance were adopted in Western Europe and in the Americas. Examples are the 1978 eu “Declaration on democracy” (→ Doc. 101), the 1981 “Declaration Regarding Intolerance – a Threat to Democracy –”, adopted by the Committee of Ministers of the Council of Europe (→ Doc. 87), the 1983 “Resolution 800 on the principles of democracy”, adopted by the Standing Committee, acting on behalf of the Parliamentary Assembly of the Council of Europe (→ Doc. 88), and the 1987 “Acapulco Commitment to Peace, Development and Democracy, adopted by the Rio Group” (→ Doc. 68). This promotion of democracy is to a certain extent also reflected in activities like election observation.24 Furthermore, some American and European 21 22 23

24

Henry J. Steiner, Political Participation as a Human Right, Harvard Human Rights Yearbook 1 (1988), 77 (87 et seq.). Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections, Dordrecht inter alia 1994, p. 119 et seq. The American Law Institute formulated this in 1987 in the following words: “International Law does not generally address domestic constitutional issues, such as how a national government is formed.” See American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, para. 203, comment e (1987), source: Gregory H. Fox/ Brad R. Roth, Democracy and International Law, Review of International Studies 27 (2001), 327 (327). Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections, Dordrecht inter alia 1994, p. 222 et seq.

8

General Introduction

international organizations accepted only democratically organized states as their members. The record is, however, completely different when it comes to other regions of the world. While a few instruments were adopted in Africa,25 no examples worth mentioning may be found in the Arab World or in Asia. 3 The Time after 1989/1990 A completely new picture appears after the transformations of 1989/1990, which removed most Marxist-Leninist regimes, one-party systems, totalitarianism and dictatorships (of the proletariat) and brought with them a move towards multi-party systems and parliamentary democracy in many of the countries concerned.26 This new openness towards democracy was mainly caused by the perception that free and unbiased elections and the creation of a representative government are an important step for the solution of regional and local conflicts, hence, a crucial factor for more stability. All these changes took place in a relatively short period of time and allowed interpreting the existing international documents referring to democracy in a more coherent way. At the same time, interpretations based on concepts of people’s democracy disappeared and international provisions relating to democracy ceased to be predominantly viewed as political or non-legal.27 As a result of this development, democracy is nowadays a subject matter of many international treaties and declarations and has emerged as a crosscutting issue in the outcomes of many major conferences and summits. Among 25

See e.g. Monrovia Declaration of Commitment of the Heads of State and Government, of the oau on Guidelines and Measures for National and Collective Self-reliance in Social and Economic Development for the Establishment of a New International Economic Order (of 17–20 July 1979, source: Res. No. AHG/ST. 3 (XVI) Rev. 1, see preamble consideration 6 that reads: “We, the Heads of State and Government of the oau […] Realizing that the political regime which protects basic human rights and democratic freedom is essential for mobilizing the creative initiative of our people for rapid economic development including scientific and technological innovation […]).” See further on resolution CM/Res. 267 (XIX) of the Council of Ministers concerning Zimbabwe that says in para. 3: “The Council of Ministers of the oau, meeting in its Nineteenth Ordinary Session in Rabat, Morocco, from 5 to 12 June 1972, […] urges [the Government of the United Kingdom] to promote the country’s attainment to independence by a democratic system of Government in accordance with the aspirations of the majority of the population […].” 26 See also Andrew K. Coleman/Jackson N. Maogoto, Democracy’s Global Quest: A Noble Crusade Wrapped in Dirty Reality, Suffolk Transnational Law Review 28 (2005), 177 (177 et seq.). 27 See James Crawford, Democracy in International Law, Cambridge 1994, p. 14 et seq.

II History of Democracy in International Law

9

these is, for example, the “United Nations Millennium Declaration” in which world leaders pledge to “spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms” (→ Doc. 5, para. 24). The “World Summit Outcome Document” of 2005 states “that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives” (→ Doc. 9, para. 135). The Heads of State and Government also “reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination.”28 The (new) importance of democracy on the international level is also exemplified by un Security Council resolution S/RES/940 (1994), in which the Council affirmed the goal of the international community to restore democracy in Haiti. The relevant part of the resolution reads: “The Security Council […] authorizes Member States to form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President [ JeanBertrand Aristide] and the restoration of the legitimate authorities of the Government of Haiti.” While this resolution remained an exceptional case, it nevertheless demonstrates the dimension of the changes after 1989/1990 in a paradigmatic way.29 Furthermore, since the end of the Cold War, the United Nations have considerably raised their election observation activities.30 In addition, there are clear indications that building up democratic structures has become a major goal when the un becomes engaged in nation building or peacebuilding activities. This new focus also underlines the high importance of democracy at the global level.

28 → Doc. 9, para. 135. 29 For more information about S/RES/940 (1994) see only Richard Falk, The Haiti Intervention: A Dangerous World Order Precedent for the United Nations, 36 (1995) Harvard International Law Journal 341 (341 et seq.); Julia Leininger, Democracy and un Peacekeeping – Conflict Resolution through State-Building and Democracy Promotion in Haiti, in: Rüdiger Wolfrum/Armin von Bogdandy (eds.), Max Planck Yearbook of United Nations Law, Vol. 10, 2006, p. 465 et seq.; Christina M. Cerna, Universal Democracy: An International Legal Right or the Pipe Dream of the West? New York University Journal of International Law and Politics 27 (1995), 289 (314 et seq.). 30 See Kofi A. Annan, Democracy as an International Issue, Global Governance 8 (2002), 135 (137).

10

General Introduction

The end of the Cold War also clearly triggered changes at the regional level. This applies especially for the African continent. While democracy appeared only very rarely in regional documents of that part of the world before 1989/1990, the beginning of the new era led to the adoption of an almost uncountable number of democracy documents in Africa. The “ecowas Protocol on Democracy and Good Governance” (→ Doc. 50) is specifically worth being mentioned.31 Other examples are the “International Conference on the Great Lakes Region Protocol on Democracy and Good Governance” (→ Doc. 53)32 or the “African Charter on Democracy, Elections and Governance” (→ Doc. 47).33 Apart from that, election monitoring has developed considerably in Africa during the last two and a half decades.34 A more or less similar development took place in the Americas, which again led to the adoption of many documents underlining the importance of democracy and free elections. The most prominent example surely is the “InterAmerican Democratic Charter” (→ Doc. 58),35 which “is recognized as being the most complete inter-American instrument so far promulgated for promoting and strengthening democratic principles, practices, and culture among the states of the region.”36 A more recent example for the growing importance of democracy in the Americas is the “Additional Protocol to the Constitutive Treaty of the Union of South American Nations (unasur) on Commitment to Democracy” (→ Doc. 81).37 With regard to the Arab world, no major changes happened after 1989/1990. Even the “Arab Spring” or the so-called “Arabellion” – a revolutionary wave that commenced in December 2010 – did not change the situation. A similar situation is to be found in Asia. However, one example of a new democracy document for that region is the “Charter of Democracy” of the South Asian Association for Regional Cooperation (saarc, → Doc. 84).38 Last but not least, with regard to Europe an important number of documents deserve mentioning. Examples are the “Document of the Copenhagen 31 32 33 34 35 36 37 38

Adopted by the 25th session of the Authority of Heads of State and Government of ecowas in Dakar, Senegal on 21 December 2001 (Protocol A/SP1/12/01). Of 1 December 2006. Of 30 January 2007. Khabele Matlosa, Election Monitoring and Observation in Zimbabwe: Hegemony versus Sovereignty, African Journal of Political Science 7 (2002), 129 (129 et seq.). Of 11 September 2001, Source: International Legal Materials 40 (2001), 1289 et seq. Organization of American States, Tenth Anniversary of the Inter-American Democratic Charter – A Hemispheric Commitment to Democracy, 2011, p. 26. Of 26 November 2010. Of 8 February 2011, Source: Doc. SAARC/CM.33/SC.38/10, Annex-III.

II History of Democracy in International Law

11

Meeting” of the Conference on the Human Dimension of the former csce, the predecessor organization of the Organization for Security and Co-operation in Europe (osce, → Doc. 102),39 and the “Charter of Paris for a New Europe” (→ Doc. 103)40 which was also adopted by the csce, both of which can be regarded as landmarks in strengthening democracy on the European continent. Furthermore, democracy continues to advance in the field of the recognition of states and governments. This can be exemplified by the “Declaration on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union”41 accepted by the ec Foreign Ministers on 16 December 1991. In this declaration the ec-Member-States demanded adherence to democracy from the new states.42 These criteria were applied to the states emerging from the dissolution of Yugoslavia. Additionally, with regard to the recognition of Montenegro, Kosovo and further new states, a number of countries stressed that their recognition was motivated by clearly visible improvements of the democratic structures in the respective states.43 The same applies to the recognition of new governments. In addition to that, democracy plays a growing role when it comes to membership in international organizations or to financial support for states. 39 40 41 42

43

Of 29 June 1990. Of 21 November 1990. Of 16 December 1991, reprinted in European Journal of International Law 4 (1993), 72 (72). In the text it reads: “The Community and its member States […] affirm their readiness to recognise […] those new States which […] have constituted themselves on a democratic basis […]. Therefore, they adopt a common position on the process of recognition of these new States, which requires: respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights […].” See only Frithjof Ehm, Demokratie und die Anerkennung von Staaten und Regierungen, Archiv des Völkerrechts 49 (2011), 64 (64 et seq.).

12 iii

General Introduction

Specific Democracy Issues in International Documents

A closer look at democracy in international documents reveals that some issues are recurring. Only a few of them shall be emphasized on the following pages. Special attention is given to the various perceptions of democracy in the literature and in the documents themselves. To have at least some clarity concerning this question is more or less the fundamental basis of dealing with topics like the triangle of democracy, human rights and the rule of law or democracy and state building that are raised on the following pages. 1 Universal and Regional Perceptions of Democracy Surely one of the biggest problems when dealing with democracy in an international context is the difficulty of differing conceptions, the term “democracy” being basically a projection surface for many different interpretations. The comprehensive collection of the relevant regional and universal documents therefore allows inquiring whether viewed together, they allow for the detection of a certain general or minimum standard of what is understood when the term democracy is used in an international context. Such a synopsis would constitute a real surplus in the international debate. A brief look into the respective literature reveals that the positions on what democracy in the international context in fact comprises are highly diverse.44 Some authors argue that it is impossible to find a “manageable” general definition, while others try to establish at least a minimum of indispensable core elements. Lastly, there is a third group of authors who favor a more substantive notion of democracy relying on more or less detailed catalogues of specific requirements.45 44 However, Armin von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization, and International Law, European Journal of International Law 15 (2004), 885 (889 et seq.), takes a different view on this matter. He writes: “There is an almost universal and increasingly legally based consensus regarding the necessary requirements for a state to qualify as being democratic. International law, comparative law as well as political and constitutional theory all agree upon the elements deemed necessary: officers of government must ultimately derive their power from citizen-based elections that are general, equal, free and periodic. Moreover, all public power has to be exercised in accordance with the rule of law and has to be restricted through a guaranteed possibility of change in power.” 45 See Christina M. Cerna, Universal Democracy: An International Legal Right or the Pipe Dream of the West? New York University Journal of International Law and Politics 27 (1995), 289 (295), who requires for a democracy: “fair and free periodic elections, three branches of government, an independent judiciary, freedom of political expression, equality before the law, and due process.” See also Jean d’Aspremont, Legitimacy of Governments in

III Specific Democracy Issues in International Documents

13

The supporters of the first view argue that there is no universal understanding of what in fact constitutes a democratic state. In support of their position they point out that even the 1993 Vienna World Conference on Human Rights (→ Doc. 3) could only agree on a very vague description of democracy.46 The highly diverse concepts of democracy, as set out in the various constitutional systems, are also taken as the starting point by those authors who favor a minimalist definition of democracy. However, these authors believe that there is, at least, a minimalist common denominator which may be derived in a comparative perspective. Usually, this common denominator is seen in the fact that all democracies presuppose that the political power is inherent in the people.47 A quite similar approach is to see the smallest common denominator of all democracies in the prohibition of authoritarianism on the basis of succession.48 The following statement by former Secretary General Kofi Annan is paradigmatic for this group: “In short, democracy requires the rule of law, administered without fear or favor, by independent courts and impartial police.”49 State practice as evidenced in the documents collected here may serve as a starting point for an inquiry into what democracy exactly means in a global and comparative perspective. A first step in this direction is to analyze the collected documents with regard to their notion of democracy. While such an approach seems indispensable in view of its basis in international practice, its limits should be addressed right from the beginning: The major obstacle must be seen in the fact that many documents refrain from defining a clear content of democracy and thus do not clarify the principle. Quite often, the words “democracy” or “democratic” are simply employed without adding any

46

47

48 49

the Age of Democracy, New York University Journal of International Law and Politics 38 (2006), 877 (895 et seq.). See para. 8, sentence 2: “Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.” The following authors underline as well that a common international definition of democracy does not exist: Jean Salmon, Internal Aspects of the Right to Self-determination: Towards a Democratic Legitimacy Principle? in: Christian Tomuschat (ed.), Modern Law of Self-determination, Dordrecht inter alia 1993, p. 278; Andrew K. Coleman/Jackson N. Maogoto, Democracy’s Global Quest: A Noble Crusade Wrapped in Dirty Reality? Suffolk Transnational Law Review 28 (2005), 175 (238 et seq.). Karl Doehring, Demokratie und Völkerrecht, in: Alexander Cremer/Thomas Giegerich/ Dagmar Richter/Andreas Zimmermann (eds.), Tradition und Weltoffenheit des Rechts, Festschrift für Helmut Steinberger, Berlin inter alia 2002, p. 129. Markku Suksi, Bringing in the People, Dordrecht inter alia 1993, p. 261. Kofi A. Annan, Democracy as an International Issue, Global Governance 8 (2002), 135 (138).

14

General Introduction

definition. Thus, unfortunately, democracy may also stand for façade or “managed” democracies. The identifying feature of these systems is that they only have the outward appearance of a democracy, which in fact is more illusion than reality. For the day-to-day governance this means: authoritarian style of government, suppression of opposition, electoral fraud, restrictions of political and civil rights of citizens and so forth.50 In addition, it is very typical for such systems to make frequent use of the term “democracy”. While the ambiguity of the term “democracy” hardly comes as a surprise given a similar tendency regarding the material scope of many human rights guarantees, it is nevertheless to be deplored. As will be demonstrated in the following section, it can at least be said that the problem of ambiguity is less pressing at the regional than at the universal level. a Global Level It may be argued that – to a minimum extent – already the “Universal Declaration of Human Rights” (→ Doc. 1) clarifies the term “democracy” or at least adds an (extremely limited number) of concrete elements (see Article 21, para. 3 of the Declaration that states: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”).51 Other documents of the United Nations – although not legally binding – go beyond such minimum standards and are therefore far more illuminative. This applies especially to the un General Assembly resolution A/RES/55/96 of December 2000 (“Promoting and consolidating democracy”, → Doc. 6). This resolution consists more or less only of its first paragraph that starts with “[The General Assembly] Calls upon States to promote and consolidate democracy, inter alia, by” and then lists three pages of features and actions that are vital for a living democracy. Paradigmatic is already the first sub-paragraph that reads: “Promoting pluralism, the protection 50 51

With regard to that problem see also Reginald Ezetah, The Right to Democracy: A Qualitative Inquiry, Brooklyn Journal of International Law 22 (1997), 495 (498 et seq.). Christina M. Cerna, Universal Democracy: An International Legal Right or the Pipe Dream of the West?, New York University Journal of International Law and Politics 27 (1995), 289 (290, 296 et seq.); see also Allan Rosas, in: Asbjørn Eide, The Universal Declaration of Human Rights, Article 21, p. 299, comments concerning Article 21 udhr: “The international community has through this provision declared not only the idea of the equal and inalienable rights of the individual in relation to his or her State, but also set minimum requirements for the structure and functioning of this State: the authority of its government must be based on the will of the people, and there must be a system of democratic participation with equal political rights for every citizen.”

III Specific Democracy Issues in International Documents

15

of all human rights and fundamental freedoms, maximizing the participation of individuals in decision-making and the development of effective public institutions, including an independent judiciary, accountable legislature and public service and an electoral system that ensures periodic, free and fair elections”.52 Additionally, the un General Assembly resolution A/RES/59/201 of 20 December 2004 entitled “Enhancing the role of regional, subregional and other organizations and arrangements in promoting and consolidating democracy” (→ Doc. 7) is also very instructive, because many core elements of democracy are mentioned.53 It is furthermore remarkable that this resolution received very broad approval in the General Assembly.54 Further concretization of the notion of democracy can be found in many documents of the Community of Democracies (cd). The Foreign Ministers of that organization have for example formulated so-called “Community of Democracies Criteria for Participation and Procedures”, (→ Doc. 19), which are based on a very broad understanding of democracy and even include seventeen corresponding conditions for membership. While some of them refer to very basic requirements, such as free and equal elections, a quite extensive catalogue of human rights is also included.55 A less far-reaching notion of 52 53

54 55

See para. 1, Lit. (a) of the resolution. See para. 1: “The General Assembly, Declares that the essential elements of democracy include respect for human rights and fundamental freedoms, inter alia, freedom of association and peaceful assembly and of expression and opinion, and the right to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote and to be elected at genuine periodic free elections by universal and equal suffrage and by secret ballot guaranteeing the free expression of the will of the people, as well as a pluralistic system of political parties and organizations, respect for the rule of law, the separation of powers, the independence of the judiciary, transparency and accountability in public administration, and free, independent and pluralistic media.” The resolution was adopted with the following voting result: 172-0-15, source: http:// research.un.org/en/docs/ga/quick/regular/59. See para. 6: “[1] Free, fair and periodic elections, by universal and equal suffrage, conducted by secret ballot, [2] Multipartidarism, the freedom to form democratic political parties that can participate in elections, [3] Guaranteeing that everyone can exercise his or her right to take part in the government of his or her country, directly or through freely chosen representatives, [4] The rule of Law, [5] The obligation of an elected government to protect and defend the constitution, refraining from extra-constitutional actions and to relinquish power when its legal mandate ends, [6] Ensuring equality before the law and equal protection under the law, including equal access to the law, [7] Separation of powers, separation of the judiciary, legislative and executive independence of the judiciary from the political or any other power, [8] Ensuring that the military remains accountable to democratically elected civilian government, [9] The respect of human rights, fundamental freedoms and the inherent dignity of the

16

General Introduction

democracy is employed in the so-called “Seoul Plan of Action” adopted by the CD in November 2002 (→ Doc. 20).56 Three years later, in 2005, this notion was repeated in exactly the same wording in the Santiago Ministerial Commitment “Cooperating for Democracy” (→ Doc. 21). The standards of democracy set out in these documents may by described as follows: (1) respect for human rights, (2) rule-of-law principle, (3) holding of periodic free and fair elections, (4) freedom of association, including the right to form independent political parties, (5) separation of powers and (6) constitutional subordination of all state institutions to the legally-constituted civilian authority.57 The Inter-Parliamentary Union (ipu) uses a very handy definition when stating: “Democracy is founded on the primacy of the law and the exercise of human rights. In a democratic State, no one is above the law and all are equal before the law.”58 Only one day earlier the ipu stated in a resolution “democracy presupposes that: [1] The people have the power to decide programmes and policies directly or through representatives chosen in free and fair elections; [2] Those

56

57 58

human being, notably, [10] Freedom of thought, conscience, religion, belief, peaceful assembly and association, freedom of speech, of opinion and of expression, including to exchange and receive ideas and information through any media, regardless of frontiers: free, independent and pluralistic media, [11] The right of every person to be free from arbitrary arrest or detention from torture or any other cruel, inhuman or degrading treatment or punishment, [12] The right to a fair trial, including to be presumed innocent until proven guilty and to be sentenced proportionally to the crime, free from cruel, inhuman or degrading punishment, [13] The right to full and non-discriminatory participation, regardless of gender, race, colour, language, religion or belief, in the political, economical and cultural life, [14] The promotion of gender equality, [15] The rights of children, elderly and persons with disabilities, [16] The rights of national, ethnic, religious or linguistic minorities, including the right to freely express, preserve and develop their identity, [17] The right of individuals to shape their own destiny free from any illegitimate constraint.” See para. 1, sentence 1: “We, the Participants in the Second Ministerial Conference of the Community of Democracies held in Seoul on 10–12 November 2002, affirm that the essential elements of representative democracy in all its forms are: [1] respect for human rights – civil, political, economic, social and cultural – including freedom of expression, freedom of the press, and freedom of religion and conscience; [2] access to and free exercise of power in accordance with the rule of law; [3] the holding of periodic free and fair elections based on secret balloting and universal suffrage monitored by independent election authorities; [4] freedom of association including the right to form independent political parties; [5] separation of powers, especially an independent judiciary; [6] and constitutional subordination of all state institutions, including the military, to the legally-constituted civilian authority.” See preamble consideration 6. “Universal Declaration on Democracy” (→ Doc. 27), Declaration adopted without a vote by the Inter-Parliamentary Council at its 161st session (Cairo, 16 September 1997), see para. 7.

III Specific Democracy Issues in International Documents

17

in power are effectively given the means to manage the country; [3] Those in power are accountable to the people.”59 Further elements for the concretization of democracy at the universal level can be found in the “Aso Rock Commonwealth Declaration on Development and Democracy” (→ Doc. 38),60 both of which were adopted by the Heads of State and Government of the Commonwealth. b Regional Level On the African continent the “African Charter on Democracy, Elections and Governance” (→ Doc. 47) must be considered the most important democracy document. In its Article 3 the African Democracy Charter lists many principles which can be regarded as a clarification of the notion of democracy.61 Being placed at the beginning, this Article has a formative character for the entire Charter. The importance of the list is confirmed by the “Declaration on the Framework for an oau Response to Unconstitutional Changes of Government” (→ Doc. 42), which, in order to describe the notion of democracy uses a list of principles quite similar to the one used in Article 3 of the African Democracy Charter.62 Another 59

60

61

62

See “Ensuring Lasting Democracy by Forging Close Links between Parliament and the People” (→ Doc. 26), Resolution adopted without a vote by the 98th Inter-Parliamentary Conference (Cairo, 15 September 1997), see preamble consideration 8. See para. 7: “[…] We recognise that building democracy is a constantly evolving process. It  must also be uncomplicated and take into account national circumstances. Among the objectives we seek to promote are the following: [1] a participatory democracy characterised by free and fair elections and representative legislatures; [2] an independent judiciary; [3] a well-trained public service; […] [4] machinery to protect human rights; [5] the right to information […].” Article 3 has the following wording: “State Parties shall implement this Charter in accordance with the following principles: [1] Respect for human rights and democratic principles; [2] Access to and exercise of state power in accordance with the constitution of the State Party and the principle of the rule of law; [3] Promotion of a system of government that is representative; [4] Holding of regular, transparent, free and fair elections; [5] Separation of powers; [6] Promotion of gender equality in public and private institutions; [7] Effective participation of citizens in democratic and development processes and in governance of public affairs; [8] Transparency and fairness in the management of public affairs; [9] Condemnation and rejection of acts of corruption, related offenses and impunity; [10] Condemnation and total rejection of unconstitutional changes of government; [11] Strengthening political pluralism and recognising the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law.” See para. 10, sentence 5: “[…] [W]e have also agreed on the following principles as a basis for  the articulation of common values and principles for democratic governance in our

18

General Introduction

document with elements for defining democracy is the “The New Partnership for Africa’s Development – nepad – A Programme of the African Union” (→ Doc. 44), in which “Africa undertakes to respect the global standards of democracy, the core components of which include political pluralism, allowing for the existence of several political parties and workers’ unions, and fair, open and democratic elections periodically organised to enable people to choose their leaders freely.”63 A further concretization can be found in the “Declaration on Democracy, Political, Economic and Corporate Governance” of the au (→ Doc. 46).64 In the sub-regional context the “Protocol on Democracy and Good Governance” of the Economic Community of West African States (ecowas, → Doc. 50), deserves mentioning, not the least because it is one of the few legally binding instruments relating to democracy. In its Article 1 this treaty sets out a whole series of so-called “Constitutional Convergence Principles”, which – just like the list contained in Article 3 of the “African Charter on Democracy, Elections and Governance” (→ Doc. 47) – can be regarded as a concretization of the notion of democracy.65 A similar but considerably shorter

63 64

65

c­ountries: (i) adoption of a democratic Constitution: its preparation, content and method of  revision should be in conformity with generally acceptable principles of democracy; (ii) respect for the Constitution and adherence to the provisions of the law and other legislative enactments adopted by Parliament; (iii) separation of powers and independence of the judiciary; (iv) promotion of political pluralism or any other form of participatory democracy and the role of the African civil society, including enhancing and ensuring gender balance in the political process; (v) the principle of democratic change and recognition of a role for the opposition; (vi) organization of free and regular elections, in conformity with existing texts; (vii) guarantee of freedom of expression and freedom of the press, including guaranteeing access to the media for all political stake-holders; (viii) constitutional recognition of fundamental rights and freedoms in conformity with the Universal Declaration of Human Rights of 1948 and the African Charter on Human and Peoples’ Rights of 1981; (ix) guarantee and promotion of human rights.” See para. 79, sentence 2. See para. 7: “At the beginning of the new century and millennium, we reaffirm our commitment to the promotion of democracy and its core values in our respective countries. In particular, we undertake to work with renewed determination to enforce (1) the rule of law; (2) the equality of all citizens before the law and the liberty of the individual; (3) individual and collective freedoms, including the right to form and join political parties and trade unions, in conformity with the constitution; (4) equality of opportunity for all; (5) the inalienable right of the individual to participate by means of free, credible and democratic political processes in periodically electing their leaders for a fixed term of office; and (6) adherence to the separation of powers, including the protection of the independence of the judiciary and of effective parliaments.” Article 1 says: “The following shall be declared as constitutional principles shared by all Member States: [a] (a) Separation of powers […]. (b) Empowerment and strengthening of

III Specific Democracy Issues in International Documents

19

catalogue can be found in the “Protocol on Democracy and Good Governance” of the International Conference on the Great Lakes Region (icglr, → Doc. 53), where the enumeration is also entitled “Principles of Constitutional Convergence” (Article 2) and contains similar principles.66 Regarding the Americas, the “Inter-American Democratic Charter” (→ Doc. 58) is by far the most comprehensive document. The Charter contains elements like a pluralistic system of political parties and organizations, the separation of powers and independence of the branches of government.67

66

67

parliaments and guarantee of parliamentary immunity. (c) Independence of the Judiciary […]. (d) The freedom of the members of the Bar shall be guaranteed […]. [b] Every accession to power must be made through free, fair and transparent elections. [c] Zero tolerance for power obtained or maintained by unconstitutional means. [d] Popular participation in decision-making, strict adherence to democratic principles and decentralization of power at all levels of governance. [e] The armed forces must be apolitical and must be under the command of a legally constituted political authority […]. [ f ] Secularism and neutrality of the State in all matters relating to religion; freedom for each individual to practise, within the limits of existing laws, the religion of his/her choice […]. [g] The State and all its institutions belong to all the citizens […]. [h] The rights set out in the African Charter on Human and Peoples’ Rights and other international instruments shall be guaranteed in each of the ecowas Member States […]. [i] Political parties shall be formed and shall have the right to carry out their activities freely, within the limits of the law […]. [ j] The freedom of association and the right to meet and organize peaceful demonstrations shall also be guaranteed. [k] The freedom of the press shall be guaranteed. [l] All former Heads of State shall enjoy a special status including freedom of movement. They shall enjoy special benefits compatible to their status as former Heads of State.” Article 2 of the protocol says: “The Member States undertake to abide by the following constitutional principles: (a) The separation of powers; (b) The accession to power through regular, free, fair and transparent elections; (c) The prohibition of unconstitutional change and any other undemocratic means of acceding to or maintaining power; (d) The public participation in decision-making process in accordance with democratic principles and decentralization; (e) The decentralisation of power at all levels of governments; ( f ) The non-partisan character of the defence and security forces; (g) The secular nature of the state and its institutions; (h) The promotion of national unity of the state and its institutions; (i) The prohibition of any ethnic, religious, racial, gender or regional discrimination; ( j) The equality of men and women, including through affirmative action policies; (k) The political pluralism; (l) The freedom of association, assembly and peaceful demonstration; (m) The freedom of expression; (n) The freedom of movement and prohibition of forced exile.” See Article 3 that reads: “Essential elements of representative democracy include, inter alia, [1] respect for human rights and fundamental freedoms, [2] access to and the exercise of power in accordance with the rule of law, [3] the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the

20

General Introduction

Another treaty with a definition of minimum elements of democracy is the “Framework Treaty on Democratic Security in Central America” of the Central American Integration System (sica, → Doc. 76). Already in its first Article this treaty presents a concept of democracy, which is based on four core principles.68 In addition, there are a number of documents that mention the essential elements of democracy more or less on the side such as the oas “Declaration of Florida: Delivering the Benefits of Democracy” (→ Doc. 63) that states in its 17th preamble consideration that “countries must be governed democratically, with full respect for human rights and fundamental freedoms, the rule of law, the separation of powers and independence of the judiciary, and democratic institutions”. Furthermore, there are also a number of European documents with a real value added in that context. One example is resolution 800 (1983) of the Council of Europe on the “principles of democracy” (→ Doc. 88), which was adopted by the Standing Committee, acting on behalf of the Parliamentary Assembly, on 1 July 1983. However, the resolution describes democracy only in very general terms.69 In comparison, resolution 1547 (2007) on the “State of human rights and democracy in Europe” (→ Doc. 93), adopted by the Parliamentary Assembly of the Council of Europe on 18 April 2007, is by far more concrete. It describes the content of democracy by referring to principles like separation of powers, political freedoms, transparency, accountability, representativity of parliaments, and the principle of the rule of law as well as the holding of free and fair elections.70 Further important documents are the “Declaration on democracy”, adopted by the European Council in Copenhagen of 7–8 April 1978 (→ Doc. 101)71 and the “Charter of Paris for a New Europe”, adopted within the

68

69

70

71

people, [4] the pluralistic system of political parties and organizations, [5] and the separation of powers and independence of the branches of government.” Article 1 reads: “The Central American Democratic Security Model is based on democracy and the strengthening of its institutions and a government of laws; on governments elected by universal, free and secret suffrage and unconditional respect for human rights in the countries of the Central American region.” See para. 4 that reads: “Noting that the concept of democracy […] means that the citizen should be given every opportunity to influence, through voluntary participation, social and professional as well as political life in a spirit of solidarity, and that the democratic principle also has consequences for international relations.” See para. 46 that reads: “[…] basic principles of democracy such as separation of powers, political freedoms, transparency and accountability […].” See para. 55, sentence 1: “Representativity of parliaments is obviously a key element of a representative democracy.” See para. 49, sentence 3: “[…] basic democratic principles, including separation of powers, checks and balances and the rule of law.” See para. 59, sentence 1: “Holding free and fair elections is an essential element of a democracy.” See para. 4 that reads: “The application of these principles [representative democracy, of the rule of law, of social justice and of respect for human rights] implies a political system of

III Specific Democracy Issues in International Documents

21

framework of the osce (→ Doc. 103), according to which a “[d]emocratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law […]. Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law.”72 c Conclusion Before attempting a brief comparative conclusion, it has to be underlined that there is no leading system of democracy. In fact, this seems to be one of the few widely accepted positions in the international debate on democracy.73 It is expressed in the 2005 “World Summit Outcome” of the first meeting of the Heads of State and Government, adopted in a resolution by the un General Assembly (→ Doc. 9): “We reaffirm that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination. We stress that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing.”74 Similarly, in resolution A/RES/60/164 of 16 December 2005 (“Respect for the principles of national sovereignty and diversity of democratic systems in electoral processes as an important element for the promotion and protection of human rights”, → Doc. 10), the un General Assembly reaffirmed “the right of peoples to determine methods and to establish institutions regarding electoral processes and, consequently, that there is no single model of democracy or of democratic institutions and that States should ensure all the necessary mechanisms and means to facilitate full and effective popular participation in those processes”.75

72 73

74 75

pluralist democracy which guarantees both the free expression of opinions within the constitutional organization of powers and the procedures necessary for the protection of human rights.” Paras. 7 and 8. See for example Kofi A. Annan, Democracy as an International Issue, Global Governance 8 (2002), 135 (139), he writes: “Democracy is practiced in different ways, and none of them is perfect. At its best it provides a method for managing and resolving disputes peacefully, in an atmosphere of mutual trust.” Para. 135. Para. 3.

22

General Introduction

Nevertheless and bearing in mind the cautious approach by the un just referred to, a comparative look at all the documents mentioned reveals six general principles relevant for a democratic government: (1) human rights, (2) free and fair elections, (3) rule of law, (4) a multi-party system, (5) separation of powers, and (6) an independent judiciary. One obvious objection to this conclusion is that a considerable number of the above mentioned documents are of regional origin, which may limit their contribution for a universal understanding of democracy. In addition, with the exception of the “saarc Charter of Democracy” (→ Doc. 84) there are essentially no substantive contributions from the Arab region and Asia. And even the saarc Charter does not mention any core requirements and is therefore based on a quite vague notion of democracy. Nevertheless, the objections should not be overestimated. The comparison shows a convergence towards the six principles in three major regions of the world (Africa, the Americas and Europe). This in itself is a remarkable development which deserves being highlighted. While it still remains true that the “imprecision of the nature and goal of democracy makes it difficult to apply it as an international standard”,76 it cannot be overlooked that a broad consensus on the six principles allows for their further development and concretization in the years to come. Democracy will only operate as a meaningful legal and political concept if its aggregation with substantive content remains adequate to the level of integration of a given region. While at the universal level it remains to be seen whether the six general principles will finally emerge as a minimum content of democracy, the regional processes in Africa, the Americas and in Europe, where these principles may considered as basically accepted, may move on by focusing their efforts on the further concretization of the six principles which in and by themselves are still quite vague and open to different interpretations.77 2 The Triangle of Democracy, Human Rights and the Rule of Law The six requirements for democracy just mentioned are also relevant from yet another point of view. They express the unity, partial overlap and manifold interrelation of democracy, human rights and rule of law. Ever since democracy has become of relevance in international law, it has been referred to in the context of a triangle of democracy, human rights and 76 77

Miguel G. Marcos, The Search for Common Democratic Standards Through International Law, Washington 2003, p. 11. For quite similar conclusions cf. Niels Petersen, Demokratie als teleologisches Prinzip, Heidelberg 2009, p. 124 et seq.

III Specific Democracy Issues in International Documents

23

rule of law.78 In the years before the end of the Cold War, this feature was mainly associated with the Council of Europe. In fact, the Council of Europe already alludes to the triangle in its Statute of 1949, where according to the second consideration of the preamble the member states reaffirm “their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy.”79 Another example from the perspective of democracy is the following statement: “We acknowledge that democracy cannot thrive without a culture of respect for human rights and the rule of law.”80 In fact, the triangle can be looked at from each of its three sides. If one takes the human rights perspective, it becomes clear that many universal and regional human rights instruments are based on the belief that human rights can only be effectively protected under a democratic form of government. This position is supported by Article 21, para. 3 of the “Universal Declaration of Human Rights” (→ Doc. 1), which states that the “will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” In addition, the human rights of the International Covenant on Economic, Social and Cultural Rights 78

See for example “Interdependence between democracy and human rights”, Report of the second expert seminar ‘Democracy and the rule of law’” (Geneva, 28 February–2 March 2005), Economic and Social Council, Distr. GENERAL E/CN.4/2005/58, 18 March 2005, see para. 33: “The triangle formed by the concepts of rule of law, human rights and democracy is not an equilateral one; circumstances may often require that greater emphasis be placed on one element, without detaching it from the others. Thus, a State whose institutions have broken down may need to re-establish democratic institutions and the rule of law to ensure respect for human rights and fundamental freedoms. States in which authoritarian rule or a populist majority has denied the rights of many persons may give priority to restoring human rights and fundamental freedoms and their system of protection, including the administration of justice.” 79 See also “The Council of Europe and the Rule of Law – An overview”, source: CM(2008)170 21 November 2008, 1042bis Meeting, 27 November 2008, see para. 4, sentence 1 that reads: “The rule of law is one of the three core principles of the Council of Europe, along with the enjoyment of human rights and fundamental freedoms and the concept of genuine democracy […].” 80 Community of Democracies 2007 Bamako Ministerial Consensus (Democracy, Development and Poverty Reduction), para. 21, sentence 1. See also Securing global democratic accountability for the common good (→ Doc. 33), para. 9, sentence 1: “Democracy is founded on the rule of law and respect for human rights, which are based on the precept that nothing must infringe upon human dignity.”

24

General Introduction

and subsequent human rights instruments covering group rights are by the same token essential for democracy. They guarantee inclusivity for all groups, including equality and equity in respect of access to civil and political rights. Furthermore, it is obvious that the practical implementation of human rights guarantees largely depends on the principle of rule of law.81 It has rightly been stressed that “the effective protection of Human Rights requires the development of stable, independent, domestic civic institutions, and a culture of democracy.”82 Similarly, the interrelation of the three sides of the triangle may be looked at from the rule of law perspective. A paradigmatic example in this regard is para. 8 of the “Sana’a Declaration on Democracy, Human Rights and the Role of the International Criminal Court” (→ Doc. 82) which considers that “[t]he effective application of the rule of law is vital to protect democracy and human rights and is the foundation for judicial independence and the application of the separation of powers.” The interrelation between democracy, human rights and rule of law is further illustrated in regional instruments like the “African Charter on Democracy, Elections and Governance” (→ Doc. 47), which contains a complete chapter dealing with the triangle (Chapter 4. Democracy, Rule of Law and Human Rights, Articles 4–10). The first provision of that chapter (Article 4, para. 1) lists the three principles and obliges the states to respect them: “State Parties shall commit themselves to promote democracy, the principle of the rule of law and human rights.”83 A similar chapter can be found in the “ecowas Protocol on Democracy and Good Governance” (→ Doc. 50), where, however, the term “democracy” is replaced by “good governance” (Section VII: Rule of Law, Human Rights and Good Governance, Articles 32–39).84 Finally, an additional example is the “Declaration about Democracy and Integration” of the Andean Community (→ Doc. 78) which states: “The Andean Community has among its main o­ bjectives the development and consolidation of democracy and the Rule of Law, as well as the respect for human rights and fundamental freedoms.”85

81

82

83 84

85

Christina M. Cerna, Universal Democracy: An International Legal Right or the Pipe Dream of the West?, New York University Journal of International Law and Politics 27 (1995), 289 (294 et seq.). Douglas L. Donoho, Human Rights and Development in the 21st Century: The Complex Path to Peace and Democracy: Themes from the 2000 Goodwin Seminar, ilsa Journal of International & Comparative Law 7 (2001), 605 (613 et seq.). See Article 4, para. 1. Very similar is the icglr Protocol on Democracy and Good Governance (→ Doc. 53). Chapter VII of this document is named: “Good Governance, the Rule of Law and Human Rights.” Section 1, para. 3.

III Specific Democracy Issues in International Documents

25

It should be noted that reference to the triangle often occurs in a fairly casual way, underlining its self-evidence or even naturalness. An example is the Community of Democracies 2007 “Bamako Ministerial Consensus” (Democracy, Development and Poverty Reduction), (→ Doc. 22) which recognizes “the need for all participants in the democratic process to respect democratic values, human rights and the rule of law.”86 Similarly, the Heads of State and Government committed themselves in the “World Summit Outcome Document of 2005” (→ Doc. 9) “to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations”.87 As the “ecowas Protocol on Democracy and Good Governance” (→ Doc. 50), shows, the triangle is quite often brought into connection with the concept of good governance. However, given that the concept of “good governance” is a vague concept itself with no consensus existing as to its exact content,88 this does not help much in elucidating the notion of democracy. In the end, it is not necessary to clarify the exact relationship between the notions of democracy and good governance since there can be no doubt that it has nowadays become crucial that states respect at least the central elements of the triangle. This is evidenced by the fact that peacekeeping mandates by the United Nations often include the restoration of democracy, rule of law and the protection of human rights. An example in point is un Security Council resolution S/RES/1244 (1999) which authorized an international civil and military presence in Kosovo, the United Nations Interim Administration Mission in Kosovo (unmik). Paragraph 10 of this resolution states: “The Security Council, authorizes the SecretaryGeneral, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional 86 87 88

See para. 39, sentence 1. Exactly the same wording can be found in the first preamble consideration of the General Assembly resolution A/RES/67/18 (Education for democracy, → Doc. 12). See, for instance, Article 4, Lit. (m) Constitutive Act of the African Union (of 11 July 2000, source: African Human Rights Law Journal 2 (2001), 315 (315 et seq.), that says: “The Union shall function in accordance with the following principles: Respect for democratic principles, human rights, the rule of law and good governance.”) and Article 1(7) Charter of the Association of Southeast Asian Nations (of 20 November 2007, source: http://agreement .asean.org/) that reads: “The Purposes of asean are: To strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms […].”

26

General Introduction

democratic selfgoverning institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.” A very similar task was given to the United Nations Transitional Administration in East Timor (untaet), which was established on the basis of un Security Council resolution S/RES/1272 (1999).89 While it is true that in both instances the territorial administration by the un was questioned with respect to its democratic legitimacy and also with regard to the respect for basic principles of rule of law,90 it is nevertheless noteworthy, that the United Nations at least formulated the respective goals in the underlying Security Council resolutions. 3 Democracy and Education Democracy is a form of government that requires active citizens. Therefore education is of paramount importance for a democratic political system. A democracy needs educated democrats. It can therefore hardly come as a surprise that many of the documents reproduced in this collection underline the key role which education plays for the development of democratic societies. Among these documents the Constitution of the United Nations Educational, Scientific and Cultural Organization (unesco) deserves specific mentioning since it was the first treaty of the un family in which the term “democratic” was included.91 unesco has continuously understood its mandate as also referring to issues of democratic education.92 The “Seoul Plan of Action – Democracy: Investing for peace and prosperity – of the Community of Democracies” (→ Doc. 20) is another important document which recognizes “that education at all levels is a fundamental component for ensuring citizens are aware of their rights and civic duties as members of a democratic society, equipped with the basic skills for effective participation in public affairs, and that an educated citizenry is essential to the development, maintenance, and strengthening of democratic institutions and growth […].”93 The “Universal Declaration on Democracy” 89

90 91

92 93

See para. 8 that reads: “The Security Council,[s]tresses the need for untaet to consult and cooperate closely with the East Timorese people in order to carry out its mandate effectively with a view to the development of local democratic institutions, including an independent East Timorese human rights institution, and the transfer to these institutions of its administrative and public service functions.” Carsten Stahn, The Law and Practice of International Territorial Administration, Cambridge 2008, p. 510 et seq. The third preamble consideration of this treaty of 16 November 1945 says: “That the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men […].” See Introduction unesco, below p. 133. See para. 3 (Education for Democracy).

III Specific Democracy Issues in International Documents

27

(→ Doc. 27) points into the same direction and states that: “[a] sustained state of democracy […] requires a democratic climate and culture constantly nurtured and reinforced by education and other vehicles of culture and information. Hence, a democratic society must be committed to education in the broadest sense of the term, and more particularly civic education and the shaping of a responsible citizenry.” The overall aim of democratic education is concisely described in the “World Plan on Education for Human Rights and Democracy” (→ Doc. 16): “Education should aim to nurture democratic values, sustain impulses for democratization and promote societal transformation based upon human rights and democracy.”94 It is against this background that the demand for democratic education at the Vienna World Conference on Human Rights (→ Doc. 3) must be seen: “The World Conference on Human Rights calls on all States and institutions to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of all learning institutions in formal and non-formal settings.” The idea of democratic education is spelled out in more detail in General Assembly resolution A/RES/67/18 (“Education for democracy”, → Doc. 12). Finally two regional examples from the African continent shall be mentioned. The “African Charter on Democracy, Elections and Governance” (→ Doc. 47) states in Article 12, paras. 1 and 2, Lit. 4: “State Parties undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace. To this end, State Parties shall integrate civic education in their educational curricula and develop appropriate programmes and activities.” The “ecowas Protocol on Democracy and Good Governance” (→ Doc. 50) points into a similar direction when stating in its Article 8: “Member States shall use the services of civil society organizations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence.” 4 Elections and Election Observation Free and fair elections with an equal right to participation may be considered the central pillar of the principle of democracy. In fact, elections are so fundamental that already the 1948 “Universal Declaration of Human Rights” (→ Doc. 1) in its Article 21, para. 3 contained the most essential requirements: periodicity, universality, equality, secrecy and freedom of voting. These fundamental requirements were included as binding treaty obligations in Article 25, Lit. (b) of the 1966 “International Covenant on Civil and Political Rights” (iccpr, → Doc. 2). They were repeated in numerous other global and regional 94

See the section on “Why?”, para. 3, sentence 5.

28

General Introduction

­instruments.95 Given these numerous affirmations it is thus plausible that there is – beyond the treaty obligation under Article 25, Lit. (b) iccpr – a ­customary law obligation to ensure participation of the citizens on the basis of free and fair elections.96 Further efforts have been devoted to spelling out in more detail the exact contents of each of the five general principles. Notably General Assembly Res. 55/96 of 4 December 2000 (→ Doc. 6) deserves mentioning here, since apart from expressly mentioning the right not only to vote but also to be elected, the resolution puts specific emphasis on the role of political parties and the media in the holding of free and fair elections.97 Other elements relate to the prohibition of granting favors for the purpose of influencing the outcome of elections,98 the prohibition to incitement to hatred or violence in electoral campaigns,99 the impartiality of the organization of elections and the possibility to seek legal redress in election-related disputes,100 or transparency in establishing the lists of voters.101 ga RES 68/164 (→ Doc. 13); Warsaw Declaration (→ Doc. 18); Seoul Plan of Action (→ Doc. 20); Santiago Commitment (→ Doc. 21); Bamako Consensus (→ Doc. 22); Unlaanbaatar Declaration (→ Doc. 23); Aso Rock Commonwealth Declaration (→ Doc. 38, para. 7); Declaration on Democracy, Political, Economic and Corporate Governance (→ Doc. 46, para. 13); African Charter on Democracy, Elections and Governance (→ Doc. 47, Chapter 7); Protocol on Democracy and Good Governance (→ Doc. 50, Article 1b and Section II); Bata Declaration for the Promotion of Lasting Democracy (→ Doc. 51, para. 11); International Conference on the Great Lakes Region Protocol on Democracy and Good Governance (→ Doc. 53, Chapter III); Inter-American Democratic Charter (→ Doc. 58, Article 3); Document of the Copenhagen Meeting (→ Doc. 102, Section I, para 6); Convention on Standards of Democratic Election, Voting Rights and Freedoms in the Member States of the Commonwealth of Independent States (→ Doc. 104). 96 Cf.  Jean d’Aspremont, L’Etat Non Démocratique en Droit International, Paris 2008, p. 290. 97 → Doc. 6, Sections 1d and 1e. 98 African Union Declaration on the Principles Governing Democratic Elections in Africa (→ Doc. 45, Section IV, para 9); Article 8 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (→ Doc. 104). 99 Ibid., para. 8; Transparency and accountability in the funding of political parties and election campaigns (→ Doc. 34); Article 8 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (→ Doc. 104). 100 Article 17 African Charter on Democracy, Elections and Governance (→ Doc. 47); Articles 3 and 7 ecowas Protocol on Democracy and Good Governance (→ Doc. 50), Article 9 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (→ Doc. 104). 101 Articles 4 and 5 ecowas Protocol on Democracy and Good Governance (→ Doc. 50). 95

III Specific Democracy Issues in International Documents

29

Election monitoring and observation activities were only developed after the end of the Second World War and have significantly increased with the end of the Cold War. Quite logically, the increased activity in international monitoring more or less runs parallel to the development of democratic standards in international law in general: Only once certain minimum standards had been established, the possibility for monitoring and observation arose. While in the early years after the end of the Cold War, international election observation notably was organized by the eu and the osce and focused on elections in countries with weak democracies or democracies in transition, monitoring of elections has been expanded also to countries with established democracies, thus avoiding any stigmatization by the mere fact of conducting international monitoring missions.102 Among the documents reprinted in this collection election monitoring is referred to essentially at all levels, by the un and by most regional organizations.103 The practically most relevant instruments are the “Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organization” and “Code of Conduct for International Election Observers” (→ Doc. 109). Both documents were developed through a broad process in which all major governmental and nongovernmental organizations concerned with election monitoring were included. The declaration was commemorated at the un on 3 April 2012 and is now endorsed by over 160 international organizations engaged in the process of improving international election observation.104 102 ga-Res. 68/164 (→ Doc. 13); Bamako-Consensus (→ Doc. 22, para. 56); UlaanbaatarDeclaration (→ Doc. 23, para. 7); Millbrock Action Plan on the Harare Declaration (→ Doc. 37, para. 2); African Union Declaration on the Principles Governing Democratic Elections in Africa (→ Doc. 45, para. V); Inter-American Democratic Charter (→ Doc. 58, para. V). 103 ga-Res. 60/164 (→ Doc. 10), for further GA-Resolutions dealing with election monitoring cf. http://www.un.org/wcm/content/site/undpa/main/issues/elections/resolutions; African Union Declaration on the Principles Governing Democratic Elections in Africa (→ Doc. 45, para. V); Declaration on Democracy, Political, Economic and Corporate Governance (→ Doc. 46, para. 13); Protocol A/SP1/12/01 on Democracy and Good Governance (→ Doc. 50, Section III); Article 13 International Conference on the Great Lakes Region Protocol on Democracy and Good Governance (→ Doc. 53); Inter-American Democratic Charter (→ Doc. 58, para. V); Declaration of Medellin: Youth and Democratic Values (→ Doc. 65, para. 30); Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter (→ Doc. 67, para. 5); Document of the Copenhagen meeting of the conference on the human dimension of the csce (→ Doc. 102, para. 26); Article 7 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (→ Doc. 104). 104 See the information provided for at http://www.gndem.org/sites/default/files/ declaration/Declaration_of_Global_Principles_0.pdf (Annex I).

30

General Introduction

5 The Role of Political Parties Political parties play a fundamental role in the organization and implementation of democratic structures. In many political systems they are crucial for selecting candidates to stand for election, they predetermine the internal organization of parliaments where the parliamentary groups often are built according to party affiliation, and, finally, they also act as intermediaries between the institutions of the state and society and are crucial for the political culture in a state. The role of political parties is often dealt with in general documents relating to the organization of elections. For instance, the “Declaration on Criteria for Free and Fair Elections” of the Inter-Parliamentary Union (ipu) proclaims a right to join or, together with others, establish a political party for the purpose of competing in elections (→ Doc. 25).105 A similar guarantee is contained in the “African Union Declaration on the Principles Governing Democratic Elections in Africa” (→ Doc. 45).106 Furthermore, the “Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States” of 2002 (→ Doc. 104) makes reference to political parties in the context of general provisions regulating elections.107 Apart from such specific reference to a right to join or establish political parties, quite often the general human right to freedom of association serves as a basis also for political parties. This position is backed by the European Court of Human Rights, which bases its jurisprudence concerning limitations on the prohibition of political parties on the right to freedom of association as contained in Article 11 European Convention of Human Rights (echr).108 Apart from the prohibition of political parties just mentioned, a number of equally thorny issues also need to be regulated. Among them are requirements regarding internal democratic structures (including the procedures for the selection of candidates and a general right to participation for members) and transparency and accountability regarding the funding of the parties themselves or their election campaigns. These issues are only addressed in a limited number of highly specialized documents. In 2011 the ipu adopted a document 105 106 107 108

Para. 3(2). Section IV, para 4. Articles 9–14. See notably European Court of Human Rights, Judgment of 13 February 2003 (gc), Applications nos. 41340/98, 41342/98, 41343/98, 41344/98, para. 86 et seq – Refah Partisi (the Welfare Party) and others v. Turkey; David J. Harris/Michael O’Boyle/Edward P. Bates/ Carla M. Buckley (eds.), Law of the European Convention on Human Rights, 3rd ed., Oxford 2014, p. 725 et seq.; Edwin Bleichrodt, Freedom of Association and Assembly (Article 11), in: Pieter van Dijk/Fried van Hoof/Arjen van Rijn/Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed., Antwerpen 2006, p. 828 et seq.

III Specific Democracy Issues in International Documents

31

entitled “Transparency and accountability in the funding of political parties and election campaigns” (→ Doc. 34), which, however, is still quite general in its terms. More detailed regulations may be found in the “Guidelines on Political Party Regulation”, which were jointly elaborated by osce/odihr and the Venice Commission in 2010 and contain detailed suggestions for regulation of the sensitive issues just mentioned (→ Doc. 100). 6 The Role of the Opposition in a Democratic Government There seems to be growing consensus that opposition constitutes a necessary element of a living democracy. The possibility for opposition follows already from the fundamental rights to freedom of opinion and association. Former un Secretary-General Boutros Boutros-Ghali made this connex in his report entitled “An agenda for democratization” (→ Doc. 4).109 A formal guarantee of freedom of opposition is included in Article 1(i) of the “ecowas Protocol on Democracy and Good Governance”, which also guarantees the freedom to form political parties (→ Doc 50). Article 3(11) of the “African Charter on Democracy, Elections and Governance” (→ Doc. 47) contains a similar provision in its list of general principles which are to be respected when implementing the Charter. The most elaborate, albeit also non-binding, instrument on the rights of opposition are the “Guidelines on the rights and duties of the opposition in a parliament” (→ Doc 28) which were adopted by representatives of African Parliaments on the occasion of a Seminar on Relations between Majority and Minority Parties in African Parliaments, organized under the auspices of the ipu. While the document is not binding and reflects only the position of those parliamentarians who were present on the occasion, it is nevertheless of considerable importance. It sets out minimum rights of participation for the opposition in the organization of the parliamentary work110 and relating to the equality of all parliamentarians irrespective of their affiliation with the majority or the opposition.111 The Guidelines envisage the adoption of a more complete document to be established within the context of the ipu itself.112 However, there does not seem to have been a follow up on the issue. 7 Undemocratic Change of Government Sanctioning undemocratic changes of government has become a major issue in the promotion of democracy at the international level. Since the end of the 109 110 111 112

Para. 21. Section III, para 2. Section III, para 3. See the introductory part of the document.

32

General Introduction

Cold War many international organizations have introduced mechanisms in order to counteract undemocratic changes of government. The oas formally amended its founding Charter in 1992 in order to include a mechanism for sanctioning an undemocratic change of government in a member state (→ Doc. 54).113 In Article 19 of the “Inter-American Democratic Charter” (→ Doc. 58), which – in contrast to the oas-Charter – is not in itself a binding document, the General Assembly of the oas has taken a similarly clear position on the issue: “[…]an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to its government’s participation in sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization, the specialized conferences, the commissions, working groups, and other bodies of the Organization.” A similar approach was taken within the au.114 While the Charter itself remains limited to a general reference to democracy and to condemning “unconstitutional” changes of government,115 the au Assembly adopted the “African Charter on Democracy, Elections and Governance” (→ Doc. 47), which, in its Article 23 clearly refers to “democratically elected governments”. Furthermore, Article 25, para. 1 also contains a mechanism for suspending the participation of a state party in which an unconstitutional change of government occurred. In addition, the au mechanism contains procedural provisions involving a decision by the African Security Council on the existence of an unconstitutional change of government and, notably, an obligation for all other members of the au to contribute to the prosecution and punishment of the perpetrators (Article 25, paras. 8–10, and Article 14, paras. 2 and 3).116 The “ecowas Protocol on Democracy and Good Governance” (→ Doc. 50) also provides for the possibility to sanction undemocratic changes of government (Article 45), albeit with a less elaborate system than the au. A similar approach is finally also included in the “Millbrook Commonwealth Action Program on the Harare Declaration” (→ Doc. 37).117 113 For an analysis of the practical application of this provision cf. Niels Petersen, Demokratie als teleologisches Prinzip, Heidelberg 2009, p. 116 et seq. 114 For an early reaction by the then still existing oau → Doc. 40. 115 Article 30 au-Charter reads: “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.” The reference to democracy is to be found in Art. 3, Lit. (g) and 4, Lit. (m) as well as in even more general terms in the Preamble. 116 For an assessment of the situation in Africa, see Niels Petersen, Demokratie als teleologisches Prinzip, Heidelberg 2009, p. 111 et seq. 117 Section B, para 3.

III Specific Democracy Issues in International Documents

33

8 Building of Democratic Institutions – Transition to Democracy While building and maintaining democratic institutions is a continuous task for all democracies,118 the process of institution building becomes particularly delicate when it comes to promoting democratic structures in societies that have witnessed civil wars and/or oppressive governments. The necessity to coordinate the different actors offering advice in such situations was already recognized in 1996 by former un Secretary-General Boutros Boutros-Ghali in his “Agenda for Democratization” (→ Doc. 4).119 Un General Assembly resolution 59/201 of 20 December 2004 (→ Doc. 7) acknowledges that the un needs to take into consideration the specific difficulties for democratic institution building in such societies.120 One area where the issue is addressed in a mid- or even longterm perspective is democratic education (see also p. 26 et seq. above). The relevant unesco documents have been included in this collection (→ Docs. 15–17). 118 See for instance Chapter 6 of the African Charter on Democracy (→ Doc. 47). 119 Paras. 45–54. 120 Para. 7.

34 iv

General Introduction

Conclusion and Future Perspectives

An overall assessment of the documents collected in this book needs to take into account, that there is always the possibility of differences between law in the books and law as applied in practice. The wording used is often broad or even vague and thus open to interpretation. Furthermore, a considerable ­number of the texts are not formally legally binding, but merely soft-law approaches to democracy of a political rather than a legal nature. And, finally, there is the open question of implementation. There are, therefore, reasons to caution against an over-optimistic assessment of the texts and their possible practical impact. And yet: Apart from these reasons for caution, there are considerable achievements that deserve genuine praise. Above all, taken together, the documents in this collection give an impressive demonstration of how far and how broadly the notion of democracy has spread over the globe. There are furthermore certain core elements, such as notably the organization of free and fair elections with equal participation of all citizens and the overall idea of a ­government deriving its legitimacy from the people and responsible to the people, which may be considered to have achieved customary law status. The growing tendency of election monitoring and also the new tendency to have international reactions to unconstitutional changes of government may be seen as first steps towards international mechanisms for monitoring and implementing at least basic democratic standards. There is also reason to assume that the interrelation between human rights and democracy may lead to an increased activity of international human rights bodies in the area of democracy. The jurisprudence of the European Court of Human Rights regarding the prohibition of political parties has already been alluded to.121 The fact that the first decision which the newly established African Human Rights Court rendered on the merits of a case, dealt with issues of democracy rather than with a classical human rights case122 may also be seen as an indication of an increased awareness for democratic elements in human rights litigation. In conclusion, it is probably fair to derive two messages from the documents collected in this book: The first is addressed to skeptics of international standards for democracy. The texts reveal that much more has already been 121 Cf. Fn. 108. 122 African Court on Human and Peoples’ Rights, Application No. 009/2011, Tanganyika Law Society & Legal and Human Rights Centre v. The United Republic of Tanzania, cf. http:// www.african-court.org/en/images/documents/Court/Cases/Judgment/Judgment%20 Application%20009-011-2011%20Rev%20Christopher%20Mtikila%20v.%20Tanzania.pdf.

IV Conclusion and Future Perspectives

35

achieved than one might assume at first sight. The second goes to the proponents of international democracy. For them, the collection may serve as a reminder that there is still a lot to be done. Notably, the issues addressed need to become much more concrete and there is also a need for the creation or refinement of implementation mechanisms. Hopefully, this collection of existing instruments will facilitate future efforts to advance the international standards on democracy in that direction.

part 1 Global Documents

∵

CHAPTER A

United Nations Introduction Democracy only gradually found its way into the major topics addressed within the context of the United Nations. It should be noted, however, that already the “1948 Universal Declaration of Human Rights” (→ Doc. 1) not only contained the classical political freedoms such as freedom of opinion (Art. 19) or freedom of assembly and of association (Art. 20), but also a right to political participation which expressly included “periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” (Art. 21). A similar formula was included into Art. 25 of the 1966 “International Covenant on Civil and Political Rights” (→ Doc. 2). During the period of the Cold War different perceptions of democracy prevailed in the East and in the West. For this reason, the issue of democracy was hardly touched upon during these years, leaving the exact interpretation of “periodic and genuine elections” and “universal and equal suffrage” as well as “by secret vote or by equivalent free voting procedures” open to different understandings on the basis of the respective concepts of democracy. The picture changed considerably after 1989/1990, when the use of the terms “democracy” or “democratic” became much more frequent and promoting and consolidating democracy became one of the aims of the United Nations. The new focus on democracy coincides with an enhanced activity of the Security Council relating to civil war situations, in which the restoration of a functioning government has often been one of the most pressing issues. In such situations the activities by the United Nations invariably had an influence on the type of government to be restored or installed. The growing interest of the United Nations in democracy is reflected in the documents reprinted here. Apart from documents which primarily focus on human rights protection in general (and in doing so also address basic democratic rights) the issue was mainly taken up in a number of resolutions by the General Assembly and in the two Secretary-General Reports. While the “Vienna Declaration and Programme of Action,” which was the outcome document of the 1993 World Conference on Human Rights (→ Doc. 3), and the “World Summit Outcome Document” of 2005 (→ Doc. 9) address the interrelation between human rights and democracy in quite general terms,1 some of the 1 → Doc. 3, para. 8, → Doc. 9, para 119. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_003

40

CHAPTER A

ensuing ga Resolutions are more specific in that regard. ga-Res. 55/96 on “Promoting and consolidating democracy,” for instance, specifically deals with the organization of the electoral process,2 the participation of civil society,3 transparency,4 and sustainable development.5 Further ga Resolutions deal even more specifically with the electoral process6 and educational issues.7 Furthermore, certain programmatic reports by the Secretary-General to the General Assembly or the Security Council are of special interest. The most prominent example in kind is certainly the report entitled “An Agenda for Peace” prepared by Secretary-General Boutros Boutros-Ghali in 1992.8 With regard to democracy, two comprehensive reports by two different Secretaries General, deserve specific mentioning. In 1996 it was again Secretary-General Boutros Boutros-Ghali who prepared a report specifically addressing the issue of democracy. Entitled “An Agenda for Democratization,” this report (→ Doc. 4) deals with claims for support from newly established democracies. For that purpose, the major elements of consensus on what democracy means in a global context are assembled9 and, on that basis, consequences for an enhanced role of the un in fostering democracy are described.10 These include an enhanced role in election assistance and in helping in the process of building democratic institutions. The second report which is reprinted in excerpts in this collection is the report “In larger freedom” submitted by Secretary-General Kofi Annan in preparation for the World Summit of Heads of State and Government in 2005 (→ Doc. 8). In this report Secretary-General Kofi Annan focuses on the issue of implementation and insists that the existing commitments to democracy need to be matched by corresponding action concerning both, establishment and preservation of democracy. On the democracy documents of the United Nations, see Gregory H. Fox/Brad R. Roth, Democracy and International Law, in: Review of International Studies 27 (2001), p. 327–352; Gregory H. Fox/Brad R. Roth (eds.), Democratic Governance

2 → Doc. 6, para. 1d. 3 Ibid., para. 1e. 4 Ibid., para. 1f. 5 Ibid., para. 1g. 6 ga Res. 60/164 (→ Doc. 10); ga Res. 68/164 (→ Doc. 13). 7 ga Res. 67/18 (→ Doc. 12). 8 un Doc. A/47/277 – S/24111 of 17 June 1992. 9 Paras. 15–25. 10 Paras. 36–60.

Introduction and International Law, Cambridge 2000; Edward Newman/Roland Rich (eds.), The un role in promoting democracy: Between ideals and reality, Tokyo 2004; Steven Wheatley, the Democratic Legitimacy of International Law, Oxford 2010; Kofi A. Annan, Democracy as a Universal Issue, in: Global Governance 8 (2002), 135–142, 2002; Frithjof Ehm, Das Völkerrechtliche Demokratiegebot, Tübingen 2013; Olivier Corten, La résolution 940 du Conseil de sécurité autorisant une intervention militaire en Haïti: L’émergence d’un principe de légitimité démocratique en droit international?, in: ejil 6 (1995), p. 116–133; Roland Rich, Bringing Democracy into International law, in: Journal of Democracy 12 (2001), p. 5–19.

41

42 1

CHAPTER A

Universal Declaration of Human Rights

Adopted by the General Assembly on 10 December 1948 Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in co-­operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

1 Universal Declaration of Human Rights

43

Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3 Everyone has the right to life, liberty and security of person. Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6 Everyone has the right to recognition everywhere as a person before the law. Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

44

CHAPTER A

Article 11 1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each state. 2. Everyone has the right to leave any country, including his own, and to return to his country. Article 14 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

1 Universal Declaration of Human Rights

45

Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association. Article 21 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work.

46

CHAPTER A

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests. Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human p ­ ersonality and to the strengthening of respect for human rights and ­fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall ­further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children. Article 27 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

1 Universal Declaration of Human Rights

47

Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of o­ thers and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

48 2

CHAPTER A

International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976 Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles: Part I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust

2 International Covenant on Civil and Political Rights

49

Territories, shall promote the realization of the right of self-­determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. Part II Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such r­emedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations

50

CHAPTER A

under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (paras. I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. […]

Part III

Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

2 International Covenant on Civil and Political Rights

51

Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. […] Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

52

CHAPTER A

( c) To have access, on general terms of equality, to public service in his country. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. […]

3 The Vienna Declaration and Programme of Action

3

53

The Vienna Declaration and Programme of Action – Excerpts

Adopted by the World Conference on Human Rights, Vienna (Austria), 25 June 1993 The World Conference on Human Rights, […] Solemnly adopts the Vienna Declaration and Programme of Action. I […] 2. All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development. Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right. […] 8. Democracy, development and respect for human rights and f­unda­mental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full ­participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should s­ upport the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world. 9. The World Conference on Human Rights reaffirms that least developed countries committed to the process of democratization and economic reforms, many of which are in Africa, should be supported by the international community in order to succeed in their transition to democracy and economic development. […] 19. Considering the importance of the promotion and protection of the rights of persons belonging to minorities and the contribution of such promotion

54

CHAPTER A

and protection to the political and social stability of the States in which such persons live, The World Conference on Human Rights reaffirms the obligation of States to ensure that persons belonging to minorities may exercise fully and effectively all human rights and fundamental freedoms without any discrimination and in full equality before the law in accordance with the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The persons belonging to minorities have the right to enjoy their own culture, to profess and practise their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination. […] 34. Increased efforts should be made to assist countries which so request to create the conditions whereby each individual can enjoy universal human rights and fundamental freedoms. Governments, the United Nations system as well as other multilateral organizations are urged to increase considerably the resources allocated to programmes aiming at the establishment and strengthening of national legislation, national institutions and related infrastructures which uphold the rule of law and democracy, electoral assistance, human rights awareness through training, teaching and education, popular participation and civil society. […] II […] 2

 ersons Belonging to National or Ethnic, Religious and Linguistic P Minorities 25. The World Conference on Human Rights calls on the Commission on Human Rights to examine ways and means to promote and protect effectively the rights of persons belonging to minorities as set out in the Declaration on the Rights of Persons belonging to National or ­Ethnic, Religious and Linguistic Minorities. In this context, the World Conference on Human Rights calls upon the Centre for Human Rights to provide, at the request of Governments concerned and as part of its programme of advisory services and technical assistance, qualified expertise on minority issues and human rights, as well as on the prevention and resolution of disputes, to assist in existing or potential situations involving minorities. 26. The World Conference on Human Rights urges States and the international community to promote and protect the rights of persons belonging to national

3 The Vienna Declaration and Programme of Action

55

or ethnic, religious and linguistic minorities in accordance with the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. 27. Measures to be taken, where appropriate, should include facilitation of their full participation in all aspects of the political, economic, social, religious and cultural life of society and in the economic progress and development in their country. […] 79. States should strive to eradicate illiteracy and should direct education towards the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. The World Conference on Human Rights calls on all States and institutions to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of all learning institutions in formal and non-formal settings. 80. Human rights education should include peace, democracy, development and social justice, as set forth in international and regional human rights instruments, in order to achieve common understanding and awareness with a view to strengthening universal commitment to human rights. […]

56 4

CHAPTER A

An Agenda for Democratization

Boutros Boutros-Ghali The following text was presented to the General Assembly by the SecretaryGeneral on 20 December 1996 as a supplement to two previous reports on democratization, and has been circulated as an official document (A/51/761) of the fifty-first session of the General Assembly under agenda item 41, “Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies.” I Introduction: Democratization and Democracy 1. Democratization is a process which leads to a more open, more participatory, less authoritarian society. Democracy is a system of government which embodies, in a variety of institutions and mechanisms, the ideal of political power based on the will of the people. 2. In places from Latin America to Africa, Europe and Asia, numbers of authoritarian regimes have given way to democratic forces, increasingly responsive Governments and increasingly open societies. Many States and their peoples have embarked upon a process of democratization for the first time. Others have moved to restore their democratic roots. 3. The basic idea of democracy is today gaining adherents across cultural, social and economic lines. While the definition of democracy is an increasingly important subject of debate within and among societies, the practice of democracy is increasingly regarded as essential to progress on a wide range of human concerns and to the protection of human rights. 4. Both democratization and democracy raise difficult questions of prioritization and timing. It is therefore not surprising that the acceleration of democratization and the renaissance of the idea of democracy have met with some resistance. On the practical level, the world has seen some slowing and erosion in democratization processes and, in some cases, reversals. On the normative level, resistance has arisen which in some cases seeks to cloak authoritarianism in claims of cultural differences and in others reflects the undeniable fact that there is no one model of democratization or democracy suitable to all societies. The reality is that individual societies decide if and when to begin democratization. Throughout the process, each society decides its nature and its pace. The starting point from which a society commences democratization will bear greatly on such decisions. Like the process of democratization, democracy can take many forms and evolve through many phases, depending on the particular characteristics and circumstances of societies. And, in every society, the persistence of democracy itself requires an ongoing process of political renewal and development.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

57

5. The phenomenon of democratization has had a marked impact on the United Nations. Just as newly independent States turned to the United Nations for support during the era of decolonization, so today, following another wave of accessions to statehood and political independence, Member States are turning to the United Nations for support in democratization. While this has been most visible in the requests for electoral assistance received since 1989 from more than 60 States – nearly one third of the Organization’s membership – virtually no area of United Nations activity has been left untouched. The peace-keeping mandates entrusted to the United Nations now often include both the restoration of democracy and the protection of human rights. United Nations departments, agencies and programmes have been called upon to help States draft constitutions, create independent systems for the administration of justice, provide police forces that respect and enforce the rule of law, de-politicize military establishments and establish national institutions for the promotion and protection Of human rights. They also have been asked by many States engaged in democratization to help encourage and facilitate the active participation of citizens in political processes, and to foster the emergence of a productive civil society, including responsible and independent communications media. 6. These operational activities were the subject of a report requested of the Secretary-General by the General Assembly in its resolution 49/30 of 7 December 1994. My report, “Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies” (A/50/332 and Corr. l), was presented to the Assembly on 7 August 1995. The General Assembly welcomed my report in its resolution 50/133 of 20 December 1995 and requested me to prepare a second report on the same subject, which I accordingly presented on 18 October 1996 (A/51/512). Beyond operational assistance, there is a growing interest among Member States in the democratization of the United Nations itself. At the Special Commemorative Meeting of the General Assembly held from 22 to 24 October 1995 on the occasion of the fiftieth anniversary of the United Nations, nearly every speaker, including 128 heads of State or Government, addressed this important issue. 7. Reflecting on these realities – the fact of democratization, the request for United Nations involvement and the interest in widening the scope of democratization – I believe the time has come for a deeper ­consideration of the idea in all its ramifications and possibilities. I discern four components of such an attempt: an emerging consensus on democracy and its practical importance; the foundation for United Nations concern with democratization and the role envisaged for it; the new momentum for, and the resultant expansion in, United Nations support for democratization; and a new dimension of this support – democratization at the international level.

58

CHAPTER A

8. I offer the present paper in the hope that it may deepen understanding of  United Nations efforts in favour of democratization and intensify debate on future international action in this area. To address the subjects of democratization and democracy does not imply a change in the respect that the United  Nations vows for the sovereignty of States or in the principle of ­non-intervention in internal affairs set out in Article 2, para. 7 of the Charter of the United Nations. To the contrary, the founding purposes and principles of the United Nations are the very basis of the present reflection. 9. The United Nations is not alone in supporting democratization. The past decade has brought a proliferation of actors engaged in this e­ ffort, which has fast become a massive global enterprise. These actors i­nclude international and regional intergovernmental organizations; individual States; parliamentarians; non-governmental organizations from the local to the global levels; and private actors such as legal professionals, the media, academics, private institutions and civic associations, including ethnic, cultural and religious groups. Taken together, they represent a vast spectrum of perspectives, expertise, approaches and techniques. The consideration of democratization offered in the present paper focuses on the United Nations as one such actor, albeit unique in character. Thus, from the outset, it is essential to be clear about the particular aim and distinct role of the United Nations in ­democratization. 10. The United Nations is, by design and definition, universal and impartial. While democratization is a new force in world affairs, and while democracy can and should be assimilated by all cultures and traditions, it is not for the United Nations to offer a model of democratization or democracy or to promote democracy in a specific case. Indeed, to do so could be counter-productive to the process of democratization which, in order to take root and to flourish, must derive from the society itself. Each society must be able to choose the form, pace and character of its democratization process. Imposition of foreign models not only contravenes the Charter principle of non-intervention in internal affairs, it may also generate resentment among both the Government and the public, which may in turn feed internal forces inimical to democratization and to the idea of democracy. 11. Therefore, the United Nations does not aim to persuade democratizing States to apply external models or borrow extraneous forms of government. Rather, the United Nations aims to help each State pursue its own particular path. Understanding democratization as a process calling for wide-ranging action, the United Nations aims to support democratizing States in a variety of processes and experiences. Its role in favour of democratization in a particular State is understood and carried out as one of assistance and advice.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

59

12. The United Nations possesses a foundation and a responsibility to serve its Member States in democratization, yet it must receive a formal request before it can assist Member States in their democratization processes. United Nations activities and responsibilities in the area of democratization thus parallel and complement those indevelopment: to provide and help coordinate assistance to those who request it, and to seek a strengthened context in which those requesting and those responding may achieve success. 13. Democratization is predominantly a new area for technical assistance. Traditionally, technical assistance has been provided in the context of economic and social development, with the main emphasis on building and strengthening physical infrastructure and the executive arm of the Government; assistance in governance beyond that was made virtually impossible by the political climate throughout most of the United N ­ ations history. While the United Nations still provides technical assistance in those areas, the wave of economic and political transitions witnessed in the post-cold-war period has led Member States to reorient their r­equests for technical assistance towards areas more relevant to democratization, broadly defined. 14. The United Nations strengthens the context for support to democratization through information-gathering and awareness-raising and by offering Member States and the wider international community a universally legitimate global forum for dialogue, debate and consensus-building. Through the United Nations, multilateral agreements can be reached – whether embodied in the form of non-binding norms, internationally recognized standards or binding obligations – which help to define a common political and legal framework for action. Indeed, it is to a certain extent through the forum of the United Nations that a consensus on democracy and its practical importance has begun to take shape. II An Emerging Consensus 15. Over the last half-century, the meaning of democracy has shifted considerably in world affairs. In 1945, democracy was a clear concept as defined by the Allied nations in opposition to fascism. With the onset of the cold war, democracy came to be propounded from two perspectives, East and West. As the third world took its place on the international stage, its members strove to find their own methods of government, appropriate to their needs, providing in the process alternative perspectives on democracy. Today, the rapidly changing global scene has set the age-old concept of democracy in a new light. While differences in the economic, social, cultural and historical circumstances of the world’s societies mean that differences will continue between democracy as viewed by one society and democracy as viewed by another, democracy is

60

CHAPTER A

increasingly being recognized as a response to a wide range of human concerns and as essential to the protection of human rights. 16. This is not to say that democracy is without its detractors. In some quarters, the charge is made that there can be no democracy in times of trouble or war, that democracy itself leads to disorder, that democracy diminishes efficiency, that democracy violates minority and community rights, and that democracy must wait until development is fully achieved. However, whatever evidence critics of democracy can find in support of these claims must not be allowed to conceal a deeper truth: democracy contributes to preserving peace and security, securing justice and human rights, and promoting economic and social development. 17. Democratic institutions and processes channel competing interests into arenas of discourse and provide means of compromise which can be respected by all participants in debates, thereby minimizing the risk that differences or disputes will erupt into armed conflict or confrontation. Because democratic Governments are freely chosen by their citizens and held accountable through periodic and genuine elections and other mechanisms, they are more likely to promote and respect the rule of law, respect individual and minority rights, cope effectively with social conflict, absorb migrant populations and respond to the needs of marginalized groups. They are therefore less likely to abuse their power against the  peoples of their own State territories. Democracy within States thus fosters the evolution of the social contract upon which lasting peace can be built. In this way, a culture of democracy is fundamentally a ­culture of peace. 18. Democratic institutions and processes within States may likewise be c­onducive to peace among States. The accountability and transparency of democratic Governments to their own citizens, who understandably may be highly cautious about war, as it is they who will have to bear its risks and burdens, may help to restrain recourse to military conflict with other States. The legitimacy conferred upon democratically elected Governments commands the respect of the peoples of other democratic States and fosters expectations of negotiation, compromise and the rule of law in international relations. When States sharing a culture of democracy are involved in a dispute, the transparency of their regimes may help to prevent accidents, avoid reactions based on emotion or fear and reduce the likelihood of surprise attack. 19. Lacking the legitimacy or real support offered by free elections, authoritarian Governments all too often have recourse to intimidation and violence in order to suppress internal dissent. They tend to reject institutions such as a free press and an independent judiciary which provide the transparency and accountability necessary to discourage such governmental manipulation of

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

61

citizens. The resulting atmosphere of oppression and tension, felt in neighbouring countries, can heighten the fear of war. It is for this reason that the Charter declares that one of the first purposes of the United Nations is “to take effective collective measures for the prevention and removal of threats to the peace.”1 Threatened by the resentment of their own people, non-democratic Governments may also be more likely to incite hostilities against other States in order to justify their suppression of internal dissent or forge a basis for national unity. 20. It is true that the introduction of democratic practices into formerly authoritarian or war-torn States may contribute to civil conflict by opening channels for free expression, including the expression of hatred. Free and fair elections can be followed by the suppression of those defeated. There is also a danger that strengthening civil society without also addressing State capacity may undermine governability or overwhelm the State. Especially for Governments in underdeveloped countries, which are typically engaged full time in the provision of basic human needs for their populations, the risks to stability that may arise in the early stages of democratization may make them reluctant to continue democratization or even to begin the process at all. 21. These difficult questions of prioritization and timing suggest several important lessons. First and foremost, it is essential that each State itself decide the form, pace and character of its democratization process. This suggests a fundamental prerequisite for democratization: the existence of a State which is able and willing not only to create the conditions for free and fair elections, but also to support the development and maintenance of the institutions necessary for the ongoing practice of democratic politics. Second, democratization must begin with an effort to create a culture of democracy – a political culture, which is fundamentally non-violent and in which no one party or group expects to win or lose all the time. Such a culture is built upon a societal consensus not about policy, but about the process and framework of democratic political life: that the will of the people is the basis of governmental authority; that all individuals have a right to take part in government; that there shall be periodic and genuine elections; that power changes hands through popular suffrage rather than intimidation or force; that political opponents and minorities have a right to express their views; and that there can be loyal and legal opposition to the Government in power. Third, democratization must seek to achieve institutional balance between the State and civil society. Finally, support for democratization must be coupled with support for development in order that socio-economic as well as civil and political rights are respected. 1 Charter of the United Nations, Article 1, para. 1.

62

CHAPTER A

Although development can take place without democracy, there is no evidence that the breakthrough to development requires an authoritarian regime. There is, however, ample evidence suggesting that, over the long term, democracy is an ingredient for both sustainable development and lasting peace. Moreover, the globalization of economic activity and communications has generated pressures for democratization and human rights. 22. In today’s world, freedom of thought, the impetus to creativity and the will to involvement are all critical to economic, social and cultural progress, and they are best fostered and protected within democratic systems. In this sense, the economic act of privatization can be as well a political act, enabling greater human creativity and participation. The best way to cultivate a citizen’s readiness to participate in the development of his or her country, to arouse that person’s energy, imagination and commitment, is by recognizing and respecting human dignity and human rights. The material means of progress can be acquired, but human resources – skilled, spirited and inventive workers – are indispensable, as is the enrichment found through mutual dialogue and the free interchange of ideas. In this way, a culture of democracy, marked by communication, dialogue and openness to the ideas and activities of the world, helps to foster a culture of development. 23. Democracy is not an affirmation of the individual at the expense of the community; it is through democracy that individual and collective rights, the rights of persons and the rights of peoples, can be reconciled. Many different balances can be struck between the rights of individuals and the rights of the community within the context of democratic politics. Democratic processes are the most reliable way to ensure that these balances are genuinely reflective of a people’s broader culture, which, in every society, must itself serve as the ballast for the healthy functioning of democracy. 24. Democracy today is receiving widespread acknowledgement for its capacity to foster good governance, which is perhaps the single most important development variable within the control of individual States. By providing legitimacy for government and encouraging people’s participation in decision-making on the issues that affect their lives, democratic processes contribute to the effectiveness of State policies and development strategies. Democratic institutions and practices foster the governmental accountability and transparency necessary to deter national and transnational crime and corruption and encourage increased responsiveness to popular concerns. In development, they increase the likelihood that State goals reflect broad societal concerns and that government is sensitive to the societal and environmental costs of its development policies. 25. Non-democratic States over time tend to generate conditions inimical to development: politicized military rule; a weak middle class; a population

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

63

constrained to silence; prohibitions on travel; censorship; restrictions on the practice of religion or imposition of religious obligations; and pervasive and often institutionalized corruption. Without democratic institutions to channel popular pressures for development and reform, popular unrest and instability will result. The reality is that no State can long remain just or free, and thus also have the potential to pursue a successful and sustainable development strategy, if its citizens are prohibited from participating actively and substantially in its political processes and economic, social and cultural development. Increasingly, it is from this perspective that democracy is being seen today – as a practical necessity. III The Foundation for Action 26. The consensus that is currently taking shape on the practical importance of democracy finds the United Nations well placed to respond to the requests of its Member States for assistance in democratization. 27. At the time of the United Nations founding in 1945, as the Second World War was drawing to a close, the overriding aim was to prevent the recurrence of global conflict. With the creation of the United Nations, the founders began a second experiment in democratic international organization, building upon the League of Nations and the logic of its Covenant, framed in the aftermath of the First World War. The Covenant has been intended to guard against the dangers of thwarted nationalism through respect for self-determination; to transcend the dangerous reliance on power balances through a shared system of security; to reverse the arms race through disarmament; and to replace secret treaties with open, international diplomacy. Democracy within and among States was understood as the binding element of these efforts. It would preserve the sovereignty and political independence of nations, by allowing individuals to exercise their fundamental right to political participation, and of peoples, by allowing them to exercise their fundamental right to self-determination. It would foster State participation in democratic international organizations and processes and in collective security arrangements. It would also encourage respect for the rule of law within and among States. The same understanding of democracy underpins the Charter of the United Nations. Within the original framework of the Charter, democracy was understood as essential to efforts to prevent future aggression, and to support the sovereign State as the basic guarantor of human rights, the basic mechanism for solving national problems and the basic element of a peaceful and cooperative international system. 28. The word “democracy” does not appear in the Charter. However, with the opening words of that document, “We the Peoples of the United Nations,” the founders invoked the most fundamental principle of democracy, rooting

64

CHAPTER A

the sovereign authority of the Member States, and thus the legitimacy of the Organization which they were to compose, in the will of their peoples. The Charter offers a vision of democratic States and democracy among them that both derives from and aims to realize the founders’ “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”2 Their commitment to democracy shows in the stated Purposes of the United Nations to promote respect for the principle of equal rights and self-determination of peoples3 and for human rights and fundamental freedoms for all without discrimination.4 It is further revealed in the stated Principle of the United Nations that “the Organization is based on the principle of the sovereign equality of all its Members.”5 29. The Universal Declaration of Human Rights, adopted unanimously by the General Assembly in 1948,6 elaborates upon this original commitment to democracy. The Universal Declaration proclaims the right of all individuals to take part in government, to have equal access to public service, and to vote and be elected. It further states that “the will of the people shall be the basis of the authority of government,” and that “this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”7 It also declares the right to equality before the law, to freedom of opinion and expression, and to freedom of peaceful assembly and association. 30. The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly in I960,8 strongly reaffirmed the right of all peoples to self-determination and declared that, “by virtue of that right [all peoples] freely determine their political status and freely pursue their economic, social and cultural development.”9 The Declaration also called for “immediate steps” to “be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any 2 3 4 5 6 7 8 9

Ibid., preamble. Ibid., Article 1, para. 2, and Article 55. Ibid., Article 1, para. 3, and Article 55. Ibid., Article 2, para. 1. General Assembly resolution 217 A (III). Ibid., Article 21, para. 3. General Assembly resolution 1514 (XV). Ibid., Article 2.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

65

distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.”10 31. Taken together, these three primary documents, the Charter of the United Nations, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples, provide a clear and solid foundation for a United Nations role and responsibility in democratization. 32. Soon after the birth of the Organization, however, the onset of the cold war effectively truncated United Nations support for its Member States in democratization. On one side of the global ideological confrontation were States which claimed to have peace and democracy at home, and which supported peoples’ calls for self-determination and democratization abroad. Yet those States often misappropriated the name of democracy and acted in drastically undemocratic ways. On the other side were States which endeavoured to maintain peace and democracy at home and to promote those objectives within other States. Yet those States often supported authoritarian regimes, on the grounds that those regimes opposed communism and defended market freedoms, or used non-democratic means to achieve their foreign policy goals. The actions of both sides seemed to suggest a belief that peace and democracy within States could be achieved by war and non-democracy among States. 33. The cold war thus interrupted the project of democratic international organization begun by the founders. Throughout the decades of this confrontation, many of the major decisions of international peace and security were taken outside the United Nations and managed within the context of a nondemocratic system, the bipolar system. The principle of self-determination was usurped and manipulated. International law became a casualty. The bright prospects for democracy within and among States soon faded to a faint glow. 34. Nonetheless, during that time the United Nations was active in keeping international organization alive, in promoting and facilitating decolonization, in easing the transition of newly independent peoples into the international State system, in promoting economic and social development, in building human rights machinery and in defending international law. The principle of self-determination was reaffirmed not only in the Declaration on the Granting of Independence to Colonial Countries and Peoples but also in the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights,11 which both entered into force in 1976, the latter Covenant making clear that economic, social and cultural rights stand on an equal basis 10 11

Ibid., Article 5. General Assembly resolution 2200 A (XXI).

66

CHAPTER A

with civil and political rights. The International Covenant on Civil and Political Rights in its Article 25 reaffirmed and made binding respect for the right of all individuals to take part in public affairs, to vote and be elected in periodic and genuine elections, and to have equal access to public service. It did the same for other basic human rights critical to the achievement of genuine electoral processes and democratic government, such as freedom of expression, of information, of assembly, of association and movement, and freedom from intimidation. 35. The foundation for a United Nations role in democratization was thus fortified even during the global contest of the cold war. As the era of super-Power confrontation was coming to an end and the drive for democratization gained momentum, there emerged a fresh prospect for the pursuit of the Charter’s original goals, and for offering assistance in democratization. IV An Evolving United Nations Role 36. The new acclaim for democracy and growing recognition of United Nations potential in democratization have been reflected most obviously in the Assembly’s increased attention in recent years to enhancing the effectiveness of the principle of periodic and genuine elections. In its resolutions on this matter, which has appeared annually on its agenda since 1988, the General Assembly has reasserted the foundation for a United Nations role in democratization by explicitly reaffirming the relevant principles, purposes and rights articulated in the Charter of the United Nations, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In a related series of resolutions on respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes, the Assembly has explicitly recalled its resolution containing the Declaration on the Granting of Independence to Colonial Countries and Peoples. 37. The General Assembly also has placed a dual emphasis on democracy as an ideal and as an essential ingredient for progress. In its resolution 43/157 of 8 December 1988, reaffirming that the will of the people, expressed in periodic and genuine elections, shall be the basis of authority of government, the General Assembly stressed that, “as a matter of practical experience, the right of everyone to take part in the government of his or her country is a crucial factor in the effective enjoyment of a wide range of other human rights and fundamental freedoms, embracing political, economic, social, and cultural rights.” 38. This series of General Assembly resolutions, together with the respondent reports submitted by myself and other relevant United Nations e­ntities, illustrates the ongoing process of dialogue, assessment, debate and reform in the area of electoral assistance that has emerged in response to the rising tide of

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

67

interest in democratization and requests for United Nations support. This process has been influenced by and received added impetus from the dialogue taking place in international conferences, particularly the World Conference on Human Rights, which was convened by the United Nations in Vienna in June 1993, and the First and Second International Conferences of New or Restored Democracies, held respectively at Manila in June 1988, with 13 countries participating, and at Managua in July 1994, with 74 countries participating. The result has been the establishment of a Focal Point for Electoral Assistance Requests within the United Nations Department of Political Affairs, along with an Electoral Assistance Division; the establishment of various trust funds for electoral assistance; the creation of a global Electoral Assistance Information Network, coordinated by the Electoral Assistance Division, in which an increasing number of intergovernmental, non-governmental and private organizations are participating; and, on the operational level, the refinement of procedures and design of new approaches to electoral assistance. 39. The evolution of this reform process in the electoral field has coincided with a major reorientation of Member States’ requests for technical assistance in institution-building, evident in the expanding interest of the United Nations agencies and programmes in the social dimension of development and in the question of governance. The scope of requests for assistance made by Member States has broadened, and now encompasses assistance provided before, during and after the holding of elections in order to “ensure the continuation and consolidation of democratization processes in Member States requesting assistance.”12 40. It is on the availability of such assistance from the United Nations system, and following on a request made in the Managua Plan of Action,13 that the General Assembly requested me to prepare the 7 August 1995 report, “Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies.”14 That report, as well as the 18 October 1996 report of the same title,15 details the range of available assistance, from assistance in the creation of a political culture in which democratization can take root, to assistance in democratic elections, to assistance in building institutions which support democratization. 41. The reports emphasize that democratization must have indigenous support if it is to take root within a society. The United Nations assists Member States 12 General Assembly resolution 48/131, para. 4. 13 A/49/713, Annex II. 14 A/50/332. 15 A/51/512.

68

CHAPTER A

in building such support by helping to promote a culture of democracy. With its impartiality and universal legitimacy, and its Charter-based purpose of promoting human rights and fundamental freedoms for all, the United Nations is uniquely placed to provide such assistance. 42. Assistance in creating a culture of democracy can take many forms and often is provided in the context of electoral assistance, although it is not, and need not be, limited to that context. In Cambodia (1993) and El Salvador (1994), the United Nations helped the parties to conduct a fair electoral campaign – free from partisan intimidation – through diplomacy, civic education programmes and efforts to ensure fair access to the media. In Mozambique (1994), the United Nations has helped transform the Resistencia Nacional de Mocambicana (renamo) into a political party and facilitated the country’s transition from a one-party to a multi-party system. In many other countries around the world, United Nations programmes for the return of refugees and displaced persons to their home territories constitute a major contribution to the re-creation of a polity within which democratization may be seriously contemplated. 43. Support for a culture of democracy has proved critical to success in holding free and fair elections in which all actors in society – ­government officials, political leaders, parliamentarians, judicial officials, police and military forces and individual citizens – play their accorded roles. M ­ oreover, it has proved critical to ensuring that electoral results are respected and that there is widespread support among all actors for the continued practice of democratic politics beyond a first referendum or election. In this regard, should a political stalemate or crisis at some point occur which threatens to derail the democratization process or to interrupt the practice of democratic politics, the United Nations should be ready to serve as a neutral and confidential mediator to try to facilitate a peaceful and satisfying resolution of the dispute. The request of the ­parties concerned is a prerequisite. 44. This same emphasis on the continuation and consolidation of democratization processes has guided the United Nations refinement of procedures and design of new approaches in the field of electoral assistance, although the purpose of elections themselves must not be to decide on whether or not democratization will go for ward but to elect a legitimate Government. The United Nations offers electoral assistance which aims to build both confidence in democratic political processes and long-term national capacity to conduct periodic and genuine elections. The United Nations endeavours to help States construct an electoral process and an electoral infrastructure using appropriate technology. Where possible, it assists in the creation of a national network for electoral observation, which encourages the participation of national political parties

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

69

and ­non-governmental organizations and thereby strengthens ­simultaneously national capacity and the base of support for continued democratization. 45. Beyond fostering a culture of democracy and holding democratic elections lies the evident and crucial need to prepare, and to continually renew and strengthen, the institutional ground in which democratization can take shape. The United Nations provides a wide variety of assistance in this area, encompassing much of its operational work in development and human rights, and focusing on both State institutions and the institutions of civil society. As stressed in my two reports, the United Nations offers assistance in institution-building for democratization that encompasses far more than helping Member States to create democratic structures of government, or to strengthen existing ones. United Nations assistance in institution-building also involves helping to improve accountability and transparency, to build national capacity and to reform the civil service – in a word, good governance. It involves institutional support for the rule of law, in which United Nations departments, agencies and programmes help States to reform and strengthen legal and judicial systems, to build human rights institutions, including those of a humanitarian character, to create police and military forces respectful of human rights and the rule of law, to provide police forces that enforce the rule of law and to depoliticize military establishments. Finally, United Nations assistance in this area involves institutionbuilding for social development, such as helping to create independent trade unions or to promote the full integration of women into all aspects of political, social, cultural and economic life – a task of particular importance to the consolidation of democratization. 46. The entire range of United Nations assistance, from support for a culture of democracy to assistance in institution-building for democratization, may well be understood as a key component of peace-building. Peace-building is a new approach which emphasizes that in order to achieve lasting peace, the effort to prevent, control and resolve conflicts must include action to address the underlying economic, social, cultural, humanitarian and political roots of conflict and to strengthen the foundations for development. 47. The proliferation of actors engaged in such activities supporting democratization has on the whole been a positive trend. Requesting States and their peoples, which themselves represent a wide diversity of circumstances, characteristics and priorities, are being offered a rich variety of perspectives, capacities, approaches and techniques from which to choose. Yet with this proliferation of actors and activity there also comes the risk of confusion, waste and duplication of effort. As in the field of development, the United Nations today can help to rationalize and ­harmonize the multiplicity of public and private efforts worldwide in the field of democratization.

70

CHAPTER A

48. To illustrate, in cases where the United Nations has been entrusted with a peacemaking or peace-keeping mandate to help bring about national reconciliation and democratic consolidation, the establishment of informal, ad hoc groups of States to support the United Nations in that effort has served to harmonize diplomatic initiatives and to achieve, among other aims, a coordinated approach in promoting a culture of democracy. Such has been the case, for example, with the “Friends of the Secretary-General for El Salvador,” the “Friends of the Secretary-General for Guatemala” and the “Friends of the Secretary-General for Haiti,” where the United Nations and the Organization of American States have deployed a joint civilian human rights mission. 49. In electoral assistance, lack of coordination among international actors risks far more than waste and duplication. Conflicting advice from technical consultants, overfunding of or inordinate attention to particular electoral components to the detriment of others, and lack of unity in assessments by electoral observers, whether made before, during or after an election, are all possible results. Each can carry potentially severe consequences for the overall electoral effort. 50. The United Nations Focal Point for Electoral Assistance Requests, the UnderSecretary-General for Political Affairs, helps to ensure coordination among the primary United Nations units active in the electoral field. Among all international actors in the electoral field, coordination is served by ongoing United Nations activities, such as the maintenance of the global Electoral Assistance Information Network, the publication and dissemination of guidelines and handbooks on electoral assistance, and the convening of workshops and seminars with various governmental, intergovernmental and non-governmental partners of the United Nations in electoral assistance. On the operational level, the United Nations can provide an umbrella framework for communication and coordination. Where possible, the United Nations has fostered joint operations with regional intergovernmental organizations. Such field cooperation has brought positive results for the requesting States, assisting organizations and relevant donors, and bodes well for enhanced coordination in the future. 51. In institution-building for democratization, the task of coordination among international actors is substantially more complex and difficult than in the electoral field. Institution-building for democratization not only involves a far larger and more diverse group of actors; it is a newer and wider area of international activity which, unlike electoral assistance, lacks a precise organizational focus. Coordination of international actors is essential to avoid waste and duplication and, more importantly, to avoid conflicting advice from technical consultants, programmes working at cross purposes and overfunding of or inordinate attention to particular aspects of the democratization process to

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

71

the detriment of others; the last could lead in turn to an imbalance between the capacities of State and civic institutions. Any or all of these results could undermine the overall effort to consolidate democratization. 52. The United Nations is well placed to facilitate coordination among international actors engaged in institution-building for democratization. The United Nations maintains a global network of regional economic and social commissions and country offices. The global mandate of the United Nations spans economic, social, security, political, humanitarian and human rights issues, which is why the United Nations is active across virtually the full range of issues relevant to democratization and can help integrate these issues into a wider effort linking peace-keeping, refugee assistance, relief efforts, reconstruction and development. Finally, the United Nations itself accounts for many of the international actors engaged in institution-building for democratization. 53. The United Nations serves coordination in institution-building by strengthening coordination within its own organizational framework and within the United Nations system as a whole. The Administrative Committee on Coordination, chaired by the Secretary-General and composed of the executive heads of all the United Nations programmes and specialized agencies, including the Bretton Woods institutions, works to foster an effective division of labour within the United Nations system and to promote joint initiatives towards common objectives. An important part of this effort is the United Nations resident coordinator system, designed to promote effective coordination among all economic and social actors at the country level. In the context of peace-keeping, this coordinating role is fulfilled by the Special Representative of the Secretary-General in command of the operation. This coordination effort within the United Nations system already allows for and encourages the participation of nonUnited Nations actors, both governmental and non-­governmental. Through this effort can be developed an expanding network for ­information-sharing, policy development and programme cooperation in democratization support. In this context, post-election needs-­assessment missions aimed at recommending programmes that might contribute to democratic consolidation could be a useful basis for  formulating coordinated approaches and joint initiatives among international actors. Such missions are now offered by the United Nations Electoral Assistance Division in accordance with General Assembly r­ esolution 48/131 of 20 December 1993. 54. For the United Nations, the task of fostering communication and coordination among international actors in democratization assistance goes hand in hand with the effort to strengthen the international context for such assistance. Towards this end, the convening of international conferences has proved to be an effective mechanism.

72

CHAPTER A

55. With the United Nations Conference on Environment and Development, held at Rio de Janeiro in June 1992, the United Nations began a series of international conferences that have brought together not only all States, but also relevant non-governmental organizations and other representatives of civil society, to focus on interlocking economic and social issues by considering their impact on the human person and human communities. At Rio, the focus was on sustainable development and the necessity for a new and equitable partnership among all States, developed and developing, and between government and civil society at all levels. At Vienna (June 1993), the world turned its attention to human rights and, in particular, to the mutually reinforcing relationship between democracy, development and respect for human rights. At Cairo (September 1994), the focus was on population and development, linking demographic change to development policies. At Copenhagen (March 1995), the age-old problems of poverty, unemployment and social disintegration were considered as global problems requiring global attention. At Beijing (September 1995), the advancement of women was discussed as a key to progress in the search for equality, development and peace. At Midrand, South Africa (May 1996), trade and development were addressed in the context of globalization and liberalization, and at Istanbul (June 1996), the focus was on human settlements and the problems of development in cities. 56. Taken together, these conferences evidence an emerging global consensus on democracy itself and, more clearly, on an array of issues directly and indirectly relevant to democratization. This consensus is being translated into international norms, agreements and specific commitments, integrated by Member States into national priorities and supported by the United Nations and others through operational activities. 57. Through international conferences and in other ways, such as the resumed fiftieth session of the General Assembly on public administration and development (15–19 April 1996), the United Nations fosters a supportive international environment for democratizing States – and, indeed, for all democracies, new and long-established – which encourages consolidation of democratization while helping to guard against erosion, reversal or abandonment of democratic politics. 58. Yet, the objective to create a supportive international environment for democracy and democratizing States requires expanded effort. If the new phenomenon of democratization within States is to be fully understood, and its progress certainly advanced, it must be considered in its full international context. 59. This means recognizing, as in 1945, the positive relationship between democracy and the functioning of the international system. The logic of the

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

73

Charter is today made manifest as United Nations support for democratization helps to prevent aggression and to foster the construction and maintenance of viable and independent States as the basic guarantors of human rights, the basic mechanisms for solving national problems and the basic elements of a peaceful and cooperative international system. 60. This relationship has evolved since 1945. The reality of globalization and the new world environment now require democratization at the international level, so that democratization within States can take root, so that the problems brought on by globalization which affect all States may be more effectively solved and so that that a new, stable and equitable international system can be constructed in place of the bipolar system so recently swept away. V Democratization at the International Level 61. Democratization internationally is necessary on three interrelated fronts. The established system of the United Nations itself has far to go before fulfilling to the extent possible the democratic potential of its present design, and in transforming those structures which are insufficiently democratic. The participation of new actors on the international scene is an acknowledged fact; providing them with agreed means of participation in the formal system, heretofore primarily the province of States, is a new task of our time. A third challenge will be to achieve a culture of democracy internationally. This will not only require a society of States committed to democratic principles and processes; it will also demand an enlarged international civil society deeply involved in democratic institutions, whether State, inter-State or supra-State, private or quasi-private; committed to democratic practices, procedures and political pluralism; and composed of peoples ingrained with those habits of openness, fairness and tolerance that have been associated with democracy since ancient times. 62. There are of course substantial differences between democratization at the international level and democratization within States. At the international level there are international organizations and institutions, and international decision-making and international law, but there is no international structure equivalent to that of State government. International society is both a society of States and a society of individual persons. Nonetheless, the concept of democratization as a process which can create a more open, more participatory, less authoritarian society applies both nationally and internationally. 63. There are likewise substantial differences between the ideas of national democracy and international democracy. Growing recognition of the practical importance of democracy within States has nevertheless contributed to

74

CHAPTER A

growing recognition of the practical importance of democracy among States, and generated increased demand for democratization internationally. 64. Individual involvement in the political process enhances the accountability and responsiveness of government. Governments which are responsive and accountable are likely to be stable and to promote peace. Many internal conflicts stem from the belief, justified or not, that the State does not represent all groups in society or that it seeks to impose an exclusive ideology. Democracy is the way to mediate the various social interests in a particular community. In the international community, it is the way to promote the participation of all actors and to provide a possibility to solve conflicts by dialogue rather than by force of arms. The process of democratization internationally can therefore help promote peaceful relations among States. 65. With participation, economic and social development become meaningful and establish deeper roots. Building democratic institutions at the State level helps to ensure that the priorities of diverse social groups are considered in the formulation of development strategies. In the international economic system, democracy can mean that the relationship between developed and developing States is one not of assistance but of cooperation. Instead of chronic reliance on emergency relief, the concerns of developed and developing States can be mediated in conferences and other United Nations intergovernmental consultations, which also engage relevant non-State actors. Democratization, therefore, can help guarantee that, through the United Nations, the poorest countries will have an ever growing voice in the international system. It can help ensure that the international system does not leave a vast portion of the world to fend for itself but truly promotes the integration and participation of all peoples. 66. If democratization is the most reliable way to legitimize and improve national governance, it is also the most reliable way to legitimize and improve international organization, making it more open and responsive by increasing participation, more efficient by allowing for burden-sharing and more effective by allowing for comparative advantage and greater creativity. Moreover, just like democratization within States, democratization at the international level is based on and aims to promote the dignity and worth of the individual human being and the ­fundamental equality of all persons and of all peoples. 67. The new world environment has strengthened this fundamental link between democratization nationally and internationally. Once, decisionmaking in global affairs could have only a limited effect on the internal affairs of States and the daily lives of their peoples. Today, decisions concerning global matters carry with them far-reaching domestic consequences, blurring the lines between international and domestic policy. In this way, unrepresentative decisions on global issues can run counter to democratization within a State and

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

75

undermine a people’s commitment to it. Thus, democratization within States may fail to take root unless democratization extends to the international arena. 68. Decisions at the global level are going to increase because the problems which can only be solved globally are going to multiply. Already, States everywhere increasingly confront forces far beyond the control of any one State or even group of States. Some of these forces are irresistible, such as the globalization of economic activity and communications. These forces, although predominantly positive in effect, affect societies unevenly, can seem accountable to no one and are creating opportunities for a host of transnational criminal activities, from illegal arms transfers to the laundering of profits from the narcotic trade. Environmental pressures are similarly irresistible and create global problems. States can also be substantially affected by another State’s domestic decisions in regard to finance or the environment and by the decisions of local authorities and private actors. It is not the forces themselves that are new but their increasing scale and level of influence upon the State. 69. These global forces can feed and interact with forces exerted upon States from below. Increased access to communications media, particularly radio, television and film, raises awareness of problems and opportunities and leads people everywhere to demand more accountability, more representation and more participation in governance – more control over their future and more say in the decisions that affect their lives. Global forces can also be a source of individual insecurity, social d­ isarray and dangerous fragmentation, creating fertile ground for fanaticism, ethnocentrism and isolationism. 70. All this means that the requirements of political governance are extending beyond State borders, even as States feel new pressures from below. Democracy within the State will diminish in importance if the process of democratization does not move forward at the international level. For if a State today is to acquire or retain the capacity to provide an enabling environment for its citizens, it must extend its influence to those factors beyond its unilateral control which help to determine the conditions of life within it. Such an extension of sovereignty will be possible and legitimate only to the extent that it rests upon mechanisms of democratic accountability. For all States, democratization at the international level has become an indispensable mechanism for global problem-solving in a way that is accountable and acceptable to all and with the participation of all concerned. Dominance by one country or group of countries must over time evolve into a democratic international system in which all countries can participate, along with new non-State actors involved in international affairs. 71. There are signs that such a process is already taking place. As States have confronted popular demands to deal with economic, security and environmental

76

CHAPTER A

issues that evade effective action on a strictly national basis, they have increasingly found themselves seeking solutions through cooperative arrangements and participation in regional and international intergovernmental organizations. Such organizations are proliferating and the scope of their activities is broadening, thereby fostering democratic principles and participation at the international level. At the same time, new channels of political expression and activity for individual citizens are developing outside governmental structures but inside the public sphere once considered the virtually exclusive province of government; the proliferation of non-governmental organizations from the local to the global and the expansion of activity through international political associations, or “political internationals,” both make clear the deficiencies of existing governmental structures in the face of global change. The overall result is that globalization is creating chains of interlocking decisions and political associations which link different levels of political representation. In other words, what is emerging are de facto linkages extending from individual citizens all the way to international organizations, grappling with global problems and prospects. The forces at work in the world today are thus demanding and enabling an unprecedented democratization of international politics and decision-making. 72. The United Nations has recognized and supported this process of democratization internationally. Its advancement deserves to become a leading priority in world affairs. But before discussing how the United Nations and others can further this process, it is essential to be clear about the nature of the political “system” that is to be democratized. 73. The “system” in which the world operates is by its very name “international.” However, as observed above, the States which are its basic components increasingly must operate in the midst of global as well as internal forces. Moreover, “international relations” – not relations among nations but relations among sovereign States – are increasingly shaped not only by the States themselves but also by an expanding array of non-State actors on the “international” scene, ranging all the way from individual persons to civic associations, nongovernmental organizations, local authorities, private multinational business, academia, the media, parliamentarians and regional and international intergovernmental organizations. 74. These changes have come to the fore largely because of the quick succession of historical events which the world has witnessed in recent years. The fall of the Berlin Wall and the end of the cold war and of East–west antagonism shattered the ideological screen which concealed the complex reality of international relations and precipitated the collapse of the bipolar system. Although reference is commonly made to the “international system,” in reality

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

77

a new international system, with a new structure for international stability and cooperation, has yet to emerge. The most legitimate, effective and responsive way to build such a system – taking into account not only geopolitical issues, but economic behaviour and social and cultural aspirations – is by democratizing the structures and mechanisms already in place. Member States 75. The first priority in this effort must be a fundamental change on the part of the Member States themselves. Despite all the pressures affecting State sovereignty in our time, the concept of sovereignty remains essential for rendering unequal power equal and for making international organization possible; States remain the most important actors of all, and will continue to be the fundamental building blocks of the international system. Yet today only a small proportion of States play their full role on the world stage. Some States, small in size or population, exercise influence far beyond their objective attributes of power. Other States possessing vast power refrain from international involvement commensurate with their strength. Of course, domestic political and constitutional ­constraints are involved, but the first and greatest step forward in democratization internationally must be increased attention to and engagement with international affairs by all States Members of the United Nations, as an application of the concept of sovereignty. 76. With this step must come a commitment on the part of all States not only to engage in dialogue and debate but also to discourage isolationism, to oppose unilateralism, to accept decisions reached democratically, to refrain from using force illegitimately, to oppose aggression, to promote and respect the rule of law in international relations and to maintain a general spirit of solidarity, cooperation and community. Unless the majority of Member States have the political will to pay attention to global affairs as they do to national affairs, the democratization of international relations will not succeed. New Actors 77. Next is the integration of new non-State actors, who are undeniably of increasing influence in world affairs, into existing international structures and mechanisms. There is a great diversity of such actors. They participate in different ways and in different degrees, more effectively within organizations and associations. The vast majority are in the North, and among them are the key actors in the process of globalization: the transnational entities involved in business and finance, which can cooperate closely with the Governments of the countries in which they are based. The degree and nature of the loss of sovereignty brought on by globalization therefore differ between the States

78

CHAPTER A

of the North and the States of the South. Increasing the participation of the new actors in international institutions must not be allowed to accentuate the gap between North and South. Just as democratization within a State must include an effort to empower citizens to participate in their own political process, so must democratization internationally include an effort to empower all States  – developed or developing, North or South, rich or poor – to participate in the international political system, of which they are all a part. 78. The United Nations is fundamentally and from its inception an Organization of sovereign States. Yet it also has from its inception offered its M ­ ember States an indispensable mechanism for cooperation with actors, both governmental and non-governmental, functioning outside the United Nations. The creation in 1945 of an international intergovernmental Organization with provisions for cooperating not only with other such organizations – such as the specialized agencies formally brought into the United Nations system under the aegis of Article 57 of the C ­ harter – but also with regional and non-governmental organizations, was a major achievement. Specifically, Chapter VIII of the Charter is devoted entirely to United Nations cooperation with regional organizations and arrangements in the maintenance of international peace and security. Article 71 of the Charter empowers the Economic and Social Council to make arrangements for consultation with non-governmental organizations active in its area of competence. 79. Within these provisions and the general framework of the Charter, the United Nations has made great strides in expanding dialogue and practical cooperation with the new actors as their influence on and importance to world affairs have grown. Nonetheless, the discussions on United Nations reform have not dealt adequately with the issue of their integration. It is crucial that in the future they do. Towards this end, the paragraphs below address several of the new actors in turn, outlining the special features which make their integration essential, their present level of involvement in the United Nations and its work, and suggestions to stimulate discussion on the question of their integration into the formal United Nations system. The suggestions touch upon a variety of steps towards deeper integration that could be taken by the United Nations Secretariat, by Member States, either individually or through the intergovernmental machinery of the United Nations, by the actor in question or, most often, by some combination of the aforementioned, acting jointly. Substantively, the steps primarily fall along three main lines, each of which stresses integration as a way to give the new actors a voice in the United Nations: a voice that can be a contribution to problem-solving; a voice on matters before the United Nations, not limited to the situation of each actor; and an avenue

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

79

of expression to the international community on the prospects, problems and requirements of the sectors that these actors represent. Regional Organizations 80. The upsurge in activity through regional organizations in the last decade, and especially since the end of the cold war, has challenged the community of States to develop the new regionalism not as a resurgent “spheres of influence” but as a healthy complement to internationalism. ­Moreover, at a time of increasing demand but decreasing resources within the United Nations for international action, the potential of regional groups to contribute political, diplomatic, financial, material and military resources has taken on even greater importance. Especially in the area of international development assistance and cooperation, where donor fatigue and indifference have set in, and in peace-enforcement, where the United Nations at present has no capacity, regional groups are for the United Nations increasingly important potential partners whose cooperation could be engaged. 81. Many regional intergovernmental organizations participate as permanent observers in the sessions and work of the General Assembly. Regional groups have long cooperated with the United Nations in the development field through the United Nations regional economic and social commissions, established in the earliest years of the Organization. Only in the vastly changed circumstances of the post-cold-war years has the United Nations been able to explore new forms of cooperation with regional groups in the maintenance of international peace and security and to delegate responsibility in particular cases to States and organizations of the regions concerned. Under the flexible framework provided by Chapter VIII of the Charter, different forms of United Nations regional cooperation have developed: consultations, diplomatic support, operational support, co-deployment and joint operations. In August 1994 and again in February 1996, 1 convened at United Nations Headquarters a high-level meeting with regional organizations that have cooperated with the United Nations in peace and security, to examine patterns of and principles for improving cooperation, and to explore the potential for expanded cooperation in the future. 82. The integration of regional organizations into the United Nations system is a cornerstone of democratization internationally. To build upon this basis, consideration should be given to holding regular meetings at United Nations Headquarters every year or every two years between the Secretariat and regional organizations cooperating with the United Nations in peace and security. The pivotal role of regional organizations in democratizing development should be enhanced by opening channels to the regional level for the views of

80

CHAPTER A

those at the local level, and by reducing bureaucratic obstacles to the flow or volume of assistance; the United Nations regional economic and social commissions are well placed to contribute to such an effort. Regionalism should be strengthened internationally through United Nations-sponsored agreements on horizontal, interregional connections in all areas of endeavour. Non-Governmental Organizations 83. In the last few decades the number of non-governmental organizations (ngos) has grown at an astonishing rate – the number of international nongovernmental organizations alone having risen from roughly 1,300 in 1960 to over 36,000 in 1995 – and their functional scope has expanded considerably. The thousands of ngos that operate today, from the grassroots to the global level, represent a wide diversity in size, s­ tatute, field of activity, methods, means and objectives. However, all are self-­governing, private institutions engaged in the pursuit of public ­purposes outside the formal apparatus of the State. Such organizations are taking on an increasingly important role in world affairs by carrying the voices and needs of the smallest communities to international attention, forging contacts between citizens’ groups across the world and offering citizens direct channels of participation in world affairs. To international organizations, non-governmental organizations can bring not only strengthened legitimacy but also field experience and expertise across a vast array of human concerns, as well as a valuable capacity for information-gathering and dissemination. Non-­governmental organizations are proving extremely powerful in fighting isolationism and indifference among both Governments and citizens, and in mobilizing public opinion and support, especially financial s­ upport and donor assistance. 84. Some 200 non-governmental organizations were present at the 1945 United Nations Conference on International Organization at San Francisco, where the Charter of the United Nations was agreed and signed. Since that time, the United Nations-ngo partnership has grown into a global network, encompassing some 1,600 nongovernmental organizations in consultative status with the Economic and Social Council under Article 71 of the Charter, some 1,500 associated with the United Nations Department of Public Information, and the many other non-­governmental organizations affiliated with United Nations offices and agencies in every part of the world. On the legislative/policy-making side, ngo participation in United Nations work is most advanced in the human rights and treaty bodies, with ngo involvement also having been critical to the establishment of those bodies. Less advanced but moving definitively forward is ngo participation in legislation and policy-making in the economic and social field. Recognizing the vital role played by non-governmental

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

81

o­ rganizations at the Earth Summit (Rio de Janeiro, June 1992), the Programme of Action adopted there, Agenda 21,16 ­provides for ngo  participation in the Commission on Sustainable Development established for its follow-up. Agenda 21 encourages the entire United Nations system and all intergovernmental organizations to review and report on ways of enhancing ngo participation in policy design, decision-making, implementation and evaluation. The momentum generated by Rio for strengthened ngo participation has been ­carried forward in subsequent conferences and led, among other outcomes, to the adoption by the Economic and Social Council in July 1996 of a new resolution on the consultative relationship between the United Nations and non-­ governmental organizations.17 On the operational level, ngo participation is most advanced in humanitarian emergencies, but it is also substantial in the development field, where ngo participation is facilitated by the United Nations Non-Governmental Liaison Service at Geneva and by various ngo committees and advisory bodies established by United Nations departments and agencies. 85. To deepen further the democratizing potential of the ngo phenomenon, non-governmental organizations and other representatives of civil society (including those addressed specifically below) should be invited to participate in Member State delegations on a regular basis. The Open-ended Highlevel Working Group on the Strengthening of the United Nations System has suggested that consideration be given to the establishment of a “civil society forum.” In addition, the Conference of Non-Governmental Organizations in Consultative Status with the Economic and Social Council should be empowered to make more precise and operational recommendations for the consideration of the Council and to help ensure that the non-governmental organizations in such status are representative and of recognized utility. 86. Each of the actors discussed below is already represented in some way through non-governmental organizations in consultative status with the Economic and Social Council. Therefore, participation via the Economic and Social Council should deepen on all fronts if these actors obtain some formalized or semi-formalized connection with the Council. Parliamentarians 87. Parliamentarians, as the directly elected representatives of their constituents, are for international organizations an essential link to international 16

17

Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, vol. I, Resolutions Adopted by the Conference (United Nations publication, Sales No. E.93.I8 and corrigendum), resolution 1, Annex II. Economic and Social Council resolution 1996/31.

82

CHAPTER A

public opinion. Without such a link it has become extremely difficult to build recognition, understanding and support for international efforts, especially in recent years as those efforts have become more complex and the international environment more uncertain. At the same time, by carrying the views and concerns of their constituents to the international arena, parliamentarians offer a direct channel for increasing the legitimacy, responsiveness and effectiveness of international organizations. Situated between citizens of States and the community of States, and by definition committed to dialogue, discussion and agreement, parliamentarians are a direct and motive force for democratization at the international level. 88. Parliamentarians have participated in the work of the United Nations in a variety of ways. Acting both individually and in concert, they have cooperated with the United Nations in the field across the full range of support for democratization. At the United Nations, they have engaged in informal consultations with the Secretariat, participated in Member State d­ elegations, contributed to preparations for international conferences and fostered international dialogue by occasionally convening their own conferences at the United Nations through the I­ nter-­Parliamentary Union,18 the world organization of parliamentarians. The Inter-­Parliamentary Union has long had consultative status with the Economic and Social Council. Following a request of the General Assembly in its resolution 50/15 of 15 November 1995, I concluded in July 1996 an agreement on cooperation between the United Nations and the Inter-Parliamentary Union which will strengthen that cooperation and give it “a new and adequate framework.” As Secretary-General, I also continue to meet with parliamentarians and members of state legislatures, upon their request, during my official visits to Member States, as do my S­ pecial Envoys and Special Representatives and other representatives of the United Nations system. 89. To consolidate and take further advantage of the contributions of parliamentarians as a factor of democratization internationally, Member States should consider: encouraging and facilitating the closer involvement of parliamentarians in United Nations efforts to provide international support for democratization within States; establishing a continuing committee or commission on the United Nations within their national parliaments; and urging the Inter-Parliamentary Union to convene every three years at a United Nations location in order to foster international dialogue and debate on the United Nations and issues before the United Nations and its Member States. 18

A/51/402, annex.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

83

Local Authorities 90. While today’s major challenges are undeniably global in character, it is at the local level where their impact is felt most directly, which is why local authorities, such as mayors and metropolitan officials, have become notably more active on global issues and, in some cases, collectively organized across countries on matters of common concern. Local participation enhances the legitimacy and effectiveness of global decisions by helping to ensure that those decisions emerge from the realities of local life and are supported by local action. Yet vigorous and effective local governance is essential not only to global problem-solving: by contributing to health and sustainable human settlements, it is also essential to international peace and security in the broadest sense. With the global trend towards urbanization, human settlements increasingly will be urban settlements. Already, the city is where global problems converge and where their interconnections are most apparent; mass migration, overpopulation, natural disasters, air and water pollution, land degradation, the rights of women and children, minority rights, unemployment, poverty and social disaffection are just some of the prime examples. At the same time, however, the city may also be the place where a sound basis for solving these problems can be built, for of all human settlements, cities are best placed to foster dialogue and diversity, to engender community and a spirit of civic engagement while also opening windows to the world. Mayors and metropolitan authorities have therefore become indispensable agents for social integration within and among cities and thus within and among States. 91. Since the Earth Summit, where local authorities were identified as one of the “major groups” of society responsible for sustainable development, the involvement of local authorities in United Nations efforts has advanced considerably. Following the Summit, a Local Agenda 21 initiative was launched by the International Council for Local Environmental Initiatives, whose members are cities and towns actively promoting participatory development processes at the local level. Mayors and metropolitan authorities participate in the work of the Commission on Sustainable Development and many exchange information and consult informally with the Commission’s secretariat. Mayors and metropolitan authorities have also mobilized in support of the United Nations Framework Convention on Climate Change and contribute to its Conference of Parties. The organizational framework for the United Nations Conference on Human Settlements (Habitat II) allowed for a more formalized involvement of local authorities. In the area of operational activities for development, programmes requested by Member States increasingly involve United Nations cooperation with local authorities. In the peace and security sphere, many local authorities support United Nations efforts through “sister cities”

84

CHAPTER A

and other such cooperation and ­cultural exchange programmes, and many cities have declared themselves nuclear-weapon-free zones. Cities have also been strongly supportive of the United Nations by hosting international gatherings and events and by providing homes to the many United Nations offices around the world. 92. To strengthen local frameworks for global problem-solving and deepen the involvement of local authorities in the United Nations system, consideration should be given to instructing United Nations resident coordinators to maintain regular dialogue with local authorities, making the interaction an integral part of the work, at the country level, on operational activities for development. The possibility of establishing a joint committee of concerned Secretariat entities and apex organizations of local authorities should be examined; such a committee would serve to raise awareness and promote exchange of experiences among local authorities and could be established along the lines of the Committee for the Promotion and Advancement of Cooperatives, which brings together the United Nations Secretariat, United Nations agencies and international non-governmental organizations to promote and coordinate assistance to cooperatives and is financed by contributions from its members. Member States should also consider a more formalized involvement of local authorities through the establishment of a small subsidiary body of the Commission on Sustainable Development, which would contribute regularly to the work of the Commission and to other relevant United Nations bodies. Academia 93. At this time of profound change, academia, including universities, research institutes and public policy centres, has taken on increased importance in world affairs by helping to uncover the dimensions of change and to construct an intellectual platform upon which future efforts may be built. By expanding the flow of ideas, academia has become increasingly powerful in encouraging public participation in national and international dialogue on the future and, more importantly, in shaping that dialogue. Thus, by its very nature, academia also contributes to democratization. At the same time, academia is providing important new evidence on the complementarity among peace, development and democracy, and on the contribution of international organizations to all three. 94. Many academic groups have engaged in informal consultations with the Secretariat and United Nations departments, agencies and programmes. They have also participated in practical assistance programmes. The United Nations itself has several research centres and institutes, as well as its own United Nations University, which promotes scholarly debate, research and training

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

85

across the range of issues relevant to the operation and efforts of international organizations. The Academic Council on the United Nations System, established by scholars, teachers and practitioners from around the world active in the work and study of international organizations, fosters dialogue and cooperation between academia and the various components of the United Nations system. 95. To enable the widest range of the world’s peoples to benefit from advances in thought and research, and to give greater recognition to the views and needs of academic institutions and enterprises, consideration should be given to expanding informal consultations with academia across the United Nations system in order to facilitate the contribution of individual scholars, scientists and research institutions to United Nations projects and problem-solving. Integrating the programme of work of the United Nations University with the overall work of the United Nations system would be an important contribution towards that end, as would the inclusion by the periodic conferences of academic disciplines of panels or programmes involving United Nations practitioners. The United Nations University and its subsidiary institutions should be strengthened to forge stronger links between academics and research institutions in the North and the South, with a view to fostering global networks where this might not otherwise be easily accomplished. Member States should consider offering a United Nations centre as the venue for academic gatherings to discuss the problems and prospects of research universities and institutions related to the work of that centre. These could serve both substantive scholarship and the capacity of academia to play a more direct role in world affairs. Business and Industry 96. Business and industry today has more power over the future of the global economy and the environment than any Government or organization of Governments. The cooperation of business and industry, whether informal producers, small or medium-sized enterprises or large-scale corporations, is critical to the achievement of development that is both socially and environmentally sustainable. Transnational or multinational corporations in particular – which are today estimated to be 40,000 in ­number, controlling some 250,000 foreign affiliates worth approximately $2.6 trillion in book value and accounting for some one third of world p ­ rivate-sector productive assets – are playing an extremely important role in economic development. This occurs not only through foreign direct investment in transitional and developing economies but also through the transfer of technology and skills and the stimulation of host country business enterprise. Moreover, and most importantly, by increasingly integrating the various functions of production across State borders, and

86

CHAPTER A

as the world’s main investors, traders, transferrers of technology and movers of people across borders, transnational corporations are today driving the emergence of an integrated international production system. A development agent and a positive factor for social integration within and among States, the private business sector – especially transnational b­ usiness – must be recognized as an integral player in international organization and more closely involved in international decision-making. 97. While business and industry has become increasingly important for shaping the world economy, the United Nations has become increasingly important for shaping the environment in which business and industry operates. United Nations efforts for peace help to maintain a stable environment in which business and industry can flourish. Less well known is the significant role played by the United Nations system in establishing the regulatory framework in which business and industry acts internationally. This is done, for example, by the World Trade Organization in trade and intellectual property rights, by the International Monetary Fund in financial transactions and by the United Nations Environment Programme, the International Labour Organization and many other United Nations programmes and specialized agencies. United Nations entities also set industry guidelines and standards and offer policy analysis and technical assistance to Member States in improving their business and industry-related policies, infrastructure and institutional framework. While United Nations efforts having an important bearing on business are extensive, interaction between the two is at present sporadic, primarily informal and not reflective of the influential role that has been achieved by business and industry in international affairs. The only major exception to this is the International Labour Organization, which brings together in its General Conference Member States represented by delegates from government, employers and workers, each of whom is entitled to vote individually on all matters. The need and, in today’s more open and increasingly globalized environment, the possibility now exist to transform the role of business and industry within the United Nations into that of an active partnership in pursuit of common objectives. In this regard, the role played by business and industry at the Earth Summit and its continuing participation in the work of the Commission on Sustainable Development are foundations upon which to build. The same can be said of the pioneering efforts under way towards linking international organizations, both governmental and non-governmental, with national and private multinational banks in order to provide the funds and services which small and medium-sized entrepreneurs in transitional and developing countries require for sustainable development activities.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

87

98. To further the widest possible mutually beneficial involvement of business and industry in the work of the United Nations, consideration should be given to establishing both a roster of United Nations technical and managerial personnel for temporary assignment to business and industry and a roster of business and industry executives and technical personnel for United Nations technical assistance activities. The effort to build the latter roster could be made in conjunction with an initiative to expand the United Nations Volunteers programme to encourage business and industry executives to engage in United Nations work and, inter alia, to join in early-stage planning for post-conflict peace-building, with the aim of encouraging foreign investment to facilitate recovery and reconstruction. Member States should also explore the expansion of the tripartite representational structure of the International Labour Organization to other parts of the United Nations system. Also to be considered is the expansion of United Nations efforts to achieve agreement on key issues required for a favourable environment for business, such as uniform commercial codes and intellectual property and accounting standards, and to deal with transnational problems, such as crime and corruption, which inhibit both good governance and good business. The Media 99. Responsible and independent global communications media can engage Governments and people in global affairs and enable them to be informed, to discuss and debate, and to express positions on the issues of the day. In this way, the global communications revolution and the global wave of democratization are mutually reinforcing: a free press is a vehicle for democratization; democratization promotes the open society in which a free press can flourish. However, in this age of instant information and near total communication, the media have become not only the  major venue for dialogue and debate within and among States, but also, definitively, an international actor with a distinct role on the international stage. The media can help keep international politics open, responsive and accountable. Without that essential link to the world public, organizations such as the United Nations would be nothing more than forums for the mutual mutterings of national and international bureaucracies. At the same time, the media themselves, especially through the immensely powerful imagery of television and film, have the ability to set the terms of international debate and to shape world public opinion. Through the issues, peoples and places they choose to highlight – or to ignore – the media today have enormous influence over the international agenda. If this influence is to be constructive and effective, the media must focus not only on the drama of conflict and confrontation in certain areas of world, but on the global pattern of violence

88

CHAPTER A

and the broader economic, social, political and humanitarian issues that dominate the international community’s long-term agenda. 100. The United Nations has an obligation to protect the independence and freedom of news organizations and to defend the right of all peoples, as set  out in Article 19 of the Universal Declaration of Human Rights,19 to the freedom of opinion and expression, including the freedom “to seek, receive and impart information and ideas through any media and regardless of frontiers.” The United Nations Educational, Scientific and Cultural Organization (unesco), along with various news organizations, has endorsed a Charter for a Free Press, committed to the unfettered flow of news and information both within and across national borders. Through unesco, the Department of Public Information of the Secretariat and various other entities, the United Nations offers its Member States support for the development of free, responsible and independent communications media. While striving to promote responsible and independent communications media worldwide, the United Nations also endeavours, without intruding on that independence, to engage, the cooperation of the media by making information about the United Nations and its work easily accessible to the media, and through it, to non-governmental organizations and the public at large. 101. While the media are a powerful force for democratization, efforts to involve them closely with the international system would contravene their highest principles of independence and objectivity. At the same time, however, thought should be given to the many issues which have arisen with the vast new role of the media in global affairs, issues which affect not only people, cultures and Governments but the media themselves. Among steps to be considered could be: endeavours by the United Nations and its Member States to offer greater transparency and access to world media; strengthening the information capacity of United Nations operations to help focus media interest and attention on international problems at risk of international neglect; and consideration by the General Assembly’s Committee on Information of the establishment of a forum where members of the media, if they choose, and without compromising their independence, could report to the international community on the state of the media. 102. Integrating these new actors into the daily practice of international politics and decision-making will not be a simple task. In some cases, where involvement is relatively limited and where the actor is of most private nature, the path towards deeper integration may not at this time be clear. But whether or not Member States confront this challenge, these new actors 19

General Assembly resolution 217 A (III).

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

89

will continue to influence the shape of the new international system as it emerges through the gradual construction of new rules and procedures. Only a concerted effort to take account of these actors will pave the way for the major structural changes now being contemplated. 103. The benefits of such an approach to reform are seen most clearly in the United Nations practice of convening special international conferences and summits. By organizing such gatherings, the United Nations has created issuebased constituencies and provided conditions under which declarations are being reached that are akin to general referendums on transnational issues. The democratic nature of these conferences contributes to the legitimacy and effectiveness of the programmes of action they are producing. Through the series of global conferences on interlocking economic and social issues, the United Nations has been providing an ongoing democratic process through which a new international consensus on and framework for development can be built. The process has given new direction to the reform and strengthening of the United Nations development machinery, which has advanced considerably, particularly in the past year. This makes manifest the critical relationship between engaging with the new actors on the international scene and reforming the architecture for international relations, the third step in promoting democratization internationally. The Architecture of the United Nations 104. By promoting democratization within its own architecture, the United Nations, as the world’s largest and most inclusive organization of Governments, can make a major contribution to democratization at the international level. Since entering office, I have made democratization a guiding objective of Secretariat reform, as evidenced, for example, in the decentralization of decision-making that has already been enacted. 105. This reform needs to be advanced by reform in the United Nations intergovernmental machinery, for which democratization can also serve as a guiding objective. There is a clear need to move towards intergovernmental machinery that is less fragmented, better able to affect global forces and more open to civil society. There is also a clear need for an Organization in which all principal organs function in the balance and harmony contemplated by the Charter. This means an Organization which operates more consistently at the political level, with a clear sense of its comparative advantages and priorities, conscious of the linkages among all dimensions of its mission, and equipped with mandates and resources that are effectively matched. 106. The General Assembly is the embodiment of the universality of the United Nations and the cornerstone of representation and participation within the

90

CHAPTER A

United Nations system, today bringing together 185 Member States on the basis of sovereign equality and democratic principles, along with several permanent observers. Improvements in the functioning of the Assembly have been a major focus of the Open-ended High-level Working Group on the Strengthening of the United Nations System. I see the Assembly performing on a continuing basis the role that the special international conferences have been playing in recent years, addressing comprehensively, and at the highest political level, the major global issues facing the international community, and fostering national and international commitments. Each session on a particular theme could consolidate and follow through on earlier meetings and set the agenda for work that lies ahead. The Assembly’s role should be one of synthesis and overall policy assessment and coordination vis-a vis the membership as well as the United Nations system. 107. The strengthening of the Economic and Social Council has been a longstanding item on the reform agenda. It received special attention in the Halifax Summit Communique of the Group of Seven major industrialized nations in June 199520 and has been considered over the past few years by two working groups. The General Assembly has acted, in its resolution 50/227 of 24 May 1996, to reinforce significantly the coordinating role of the Economic and Social Council. Equally important, in the resolution the General Assembly also instructed the Council to undertake further reviews of its functional and regional commissions and its expert groups. The resolution thus set the stage not only for greater balance in the functioning of the Assembly and the Council, but also for a further streamlining and strengthening of the intergovernmental machinery in the economic and social field. With a view towards the continuing revitalization of the Economic and Social Council, I see three priority requirements: more regular and formalized participation in the work of the Council by the new actors on the global scene; ministerial participation, and increasing involvement of the new actors, in the high-level segment; and a decision to bring the reforms initiated so far in relation to operational activities a step further, so as to enable the Economic and Social Council to exercise an effective role of governance over all the operational funds and programmes of the Organization. 108. Enhancing the General Assembly and the Economic and Social Council should help to correct the growing imbalance in the functioning, responsibilities and authority of those organs and of the Security Council. At the same time, the new international environment and the marked expansion in the level and scope of Security Council activity call for the reform of its ­membership, 20

A/50/254-S/1995/501, Annex I, para. 36.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

91

procedure and working methods, towards a more efficient, representative and open body. 109. The question of Security Council reform is the focus of ongoing debate in the General Assembly through its working group on the matter and other Council-related issues.21 Member States have welcomed the positive steps taken thus far to improve the flow of information between the Council and the membership at large and to increase the participation of States not members of the Council, especially troop-contributing countries, in Council debates. Progress on the more complex and difficult issue of Security Council membership and voting procedures has been slow. However, the reports of the working group and the remarks made during the Special Commemorative Meeting of the General Assembly, held from 22 to 24 October 1995, reveal an emerging consensus on a number of important points. Most Member States seem to concur that the present size and composition of the Security Council are no longer representative of the general membership of the United Nations or of geopolitical realities. Bearing in mind the need for manageability, most also seem to agree that more effective, equitable and representative participation in the Security Council could be achieved by increasing the overall number of its seats. Once full consensus is reached, the question will ultimately be resolved by the Member States through the processes set out in the Charter, as in 1965 when the membership of the Council was expanded from 11 to 15 by Charter amendment and the minimum number of votes needed for the Council to act was raised from 7 to 9. 110. The vision and the will required to bring about the changes currently being contemplated concerning the composition, the procedure and the working methods of the Security Council will not be easy to achieve, as balancing capacity to contribute with geopolitical representation will be one of the most difficult obstacles to overcome, but transformation in some form may become essential for the future success of the Council and for the Organization itself. The achievement of those changes would be a major contribution to the realization of a United Nations Organization in which each element plays its full and proper role. 111. A fundamental part of this effort must be to encourage and facilitate the use of the International Court of Justice. The Charter envisions the Court as an integral component of the peacemaking apparatus of the United Nations as a whole, through its roles in arbitration and the peaceful settlement of disputes. In this 21

Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council.

92

CHAPTER A

regard, the establishment by the Security Council in 1994 of a United Nations Observer Group to monitor, at the request of the parties, the implementation of the Court’s judgment in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad)22 has created an impressive precedent, which shows much promise for international law and its functioning in an increasingly integrated United Nations system. 112. All Member States should accept the general jurisdiction of the Court without exception; where domestic constraints prevent this, States should provide a list of the matters they are willing to submit to the Court. The dispute settlement clauses of treaties should permit the exercise of the Court’s jurisdiction. The Security Council, under Articles 36 and 37 of the Charter, can recommend that Member States submit disputes to the International Court of Justice. I have on several occasions urged that the Secretary-General be authorized by the General Assembly, pursuant to Article 96 of the Charter, to turn to the Court for advisory opinions, providing a legal dimension to his diplomatic efforts to resolve disputes. Beyond this, the General Assembly should not hesitate to draw upon that same Article in referring to the Court questions concerning the consistency of resolutions adopted by United Nations bodies with the Charter of the United Nations. 113. With the International Court of Justice as one of its principal organs, and as the world body of sovereign States, the United Nations provides the forum and the mechanism for the advancement of international law and jurisdiction. This aspect of United Nations endeavours deserves wider recognition and attention from its Member States, not least because international law is another essential aspect of the United Nations architecture which holds enormous potential for democratization at the international level. International law promotes mutual respect among States and peoples, provides a rigorous analytical framework for approaching problems of mutual concern and offers a powerful basis for multilateral action. As such, it is a powerful tool for democratization. At the same time, democratization internationally will strengthen respect for international law. Democratic processes are designed to accommodate diversity. Democratic processes at the international level therefore provide the best way to reconcile the different legal systems of States. With continued democratization internationally, one can contemplate the eventual creation of a common international legal system, not to replace national legal systems, but to serve in certain kinds of cases as a core institution of democratic cooperation within and among States. 22

I.C.J. Reports 1994, page 6.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

93

114. The establishment of the International Tribunal for the Law of the Sea and the actions of the Security Council establishing international tribunals on war crimes committed in the former Yugoslavia and in Rwanda are important steps towards the effective rule of law in international affairs. The next step must be the further expansion of international jurisdiction. The General Assembly in 1994 created an ad hoc committee to consider the establishment of a permanent international criminal court, based upon a report and draft statute prepared by the International Law Commission.23 The Assembly has since established a preparatory committee to prepare a draft-convention for such a court that could be considered at an international conference of plenipotentiaries.24 This momentum must not be lost. The establishment of an international criminal court would be a monumental advance, affording, at last, genuine international jurisdictional protection to some of the world’s major legal achievements. The benefits would be manifold, enforcing fundamental human rights and, through the prospect of enforcing individual criminal responsibility for grave international crimes, deterring their commission. 115. This area of United Nations activity, promoting democratization internationally, exemplifies the seamless connection between the United Nations roles in peace-building at the State level and in the maintenance of the international system. As is apparent in the diversity of new actors to be accounted for and in the changes in architecture to be addressed, this task of the United Nations has become increasingly complex in recent years. It amounts to nothing less than managing the construction of a new international system in an increasingly globalized environment, marked by a rapidly expanding array of non-State actors. It amounts to nothing less than peace-building at the international level, in the aftermath of the cold war. VI Conclusion: Towards an Agenda for Democratization 116. In June 1992, at the request of the Security Council, I issued “An Agenda for Peace,”25 in which I emphasized the need for a comprehensive approach to peace and security, incorporating preventive diplomacy, peacemaking, peacekeeping and peace-building. I also drew the attention of the international community, in the report, to the reality that peace and development could no longer be regarded as separate undertakings.

23

See Official Records of the General Assembly, Forty-ninth Session, Supplement No. 10 (A/49/10), chapter 11.B.I. 24 See ibid., Fifty-first Session, Supplement No. 22, vols. I and II. 25 A/47/277-S/24111.

94

CHAPTER A

117. In May 1994, at the request of the General Assembly, I produced a companion report to “An Agenda for Peace,” entitled “An Agenda for Development,”26 in which I presented development as a multidimensional enterprise that involves far more than economic growth. Development efforts have to be guided by a new understanding of the different dimensions of development, one of which is democracy as good governance. 118. The present paper has been motivated by the evident desire for democratization, not only within States, but also among them and throughout the international system. It has been rooted in the conviction that peace, development and democracy are inextricably linked. While recognizing that the relations between these three great concepts remain a matter of controversy, this paper, in a sense, completes my reflections on “An Agenda for Peace” and “An Agenda for Development” and is offered in the hope it will motivate intensified international debate on the two agendas and contribute to the necessary construction of a third essential agenda, an agenda for democratization. 119. At the heart of this debate will be the difficult questions, raised by democratization, of prioritization and timing among peace, development and democracy, questions which have been a constant concern throughout this paper. In some cases, peace, development and democracy have been pursued simultaneously. Such was the case in Cambodia, El Salvador and Mozambique, where United Nations efforts in support of democratization served as a link between conflict resolution, on the one hand, and reconstruction and development, on the other. 120. In other cases, however, the joint pursuit of these goals has proved more difficult than expected, at times contributing to political instability, social disarray and economic disappointment. These experiences have brought to the fore the main question of prioritization: whether democratization requires as a precondition the achievement within a nation of a certain level of peace and development. 121. Peace can be seen as essential, for without some degree of peace, neither development nor democracy is possible. Yet both development and democracy are essential if peace is to endure. The articulation between development and democracy is more complex. Experience has shown that development can take place without democracy. However, there is little to suggest that development requires an authoritarian regime and much to suggest that, over the long term, democracy is an essential ingredient for sustainable development. At the same time, development is an essential ingredient for true democracy so that, 26 A/48/935.

4  SG-REPORT: AN AGENDA FOR DEMOCRATIZATION

95

beyond formal equality, all members of society are empowered to participate in their own political system. 122. The present paper does not pretend to provide an easy answer to the questions of prioritization and timing that have arisen with the new wave of democratization. Rather, it seeks, by drawing out the lessons of experience, to help shape a platform of understanding upon which solutions can be built. Foremost among these lessons is that there is no one model of democratization or democracy suitable to all societies. The path adopted by each society depends upon its historical circumstances, economic situation, and the political will and commitment of its members. 123. Realism imposes prioritization upon States. Each State must be free to determine for itself its priorities for the welfare of its people. This prioritization, however, should only be applied over the short term and cannot serve States as a pretext for the neglect of any one of the three objectives of peace, development and democracy. 124. Given the potential dangers of democratization, a cautious approach is understandable and in fact, necessary. However, with this caution must come the crucial recognition that these dangers can be reduced. Lessons learned about democratization over the past few years suggest ways in which democratization can be undertaken more safely and effectively, and more certainly advanced. Democratization requires a comprehensive approach, addressing not only the holding of free and fair elections, but also the construction of a political culture of democracy and the development and maintenance of institutions to support the ongoing practice of democratic politics. Democratization must seek to achieve a balance between the institutions of the State and the institutions of civil society. In order to succeed over time, democratization within States must also be supported by a process of democratization among States and throughout the international system. 125. Democratization internationally brings with it its own set of problems of prioritization and timing. Democratization internationally, as this paper has sought to show, can be a contribution to peace and development. However, there is a concern that international efforts to deal with the outbreak of conflict may detract attention and resources away from development cooperation and democratization support. Between development and democratization the articulation is, here again, more complex. Democratization internationally can serve the cause of social equity and be a powerful tool for addressing the alarming socio-economic gap between North and South. At the same time, however, democratization internationally may itself require the reduction of the North–south gap, so that all States are empowered to participate in the international political system, to which they all belong. This latter concern goes beyond the question of resources available for

96

CHAPTER A

State participation. If democratization internationally is to include the increased participation of new non-State actors, the fact that the vast majority of these actors today come from the North must be considered. 126. With its global mandate and as the world’s most inclusive global forum, the United Nations role in democratization is, in a sense, to help States and the international community deal with the questions of prioritization and timing as they arise both nationally and internationally. Through the United Nations, the three great goals of peace, development and democracy can receive the comprehensive treatment they deserve. 127. The United Nations project in democratic international organization, begun some 50 years ago, has gained new momentum. Yet significant obstacles remain. The disruptions and distortions of recent decades must be overcome. The original understandings of 1945 must be restored and hard-won wisdom readily applied. Disillusion created by the manifest difficulties of creating a new international system must be surmounted. The wave of democratization must be seen in its full context, as a movement of global extent and requiring integration of all levels of world affairs. 128. While democratization must take place at all levels of human society – local, national, regional and global – the special power of democratization lies in its logic, which flows from the individual human person, the one irreducible entity in world affairs and the logical source of all human rights. At the same time that democratization will rely upon individual commitment to flourish, democratization will foster the conditions necessary for the individual to flourish. Beyond all the obstacles lie bright prospects for the future.

5 GA-Res. 55/2. United Nations Millennium Declaration

5

97

ga-Res. 55/2. United Nations Millennium Declaration

United Nations A/RES/55/2, adopted by the General Assembly on 8 September 2000 (8th plenary meeting) […] V Human rights, Democracy and Good Governance 24. We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development. 25. We resolve therefore: – To respect fully and uphold the Universal Declaration of Human Rights. – To strive for the full protection and promotion in all our countries of civil, political, economic, social and cultural rights for all. – To strengthen the capacity of all our countries to implement the principles and practices of democracy and respect for human rights, including minority rights. – To combat all forms of violence against women and to implement the Convention on the Elimination of All Forms of Discrimination against Women. – To take measures to ensure respect for and protection of the human rights of migrants, migrant workers and their families, to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies. – To work collectively for more inclusive political processes, allowing genuine participation by all citizens in all our countries. – To ensure the freedom of the media to perform their essential role and the right of the public to have access to information. […]

98 6

CHAPTER A

ga-Res. 55/96. Promoting and Consolidating Democracy

United Nations A/RES/55/96, adopted by the General Assembly on 4 December 2000 (81st plenary meeting) The General Assembly, Reaffirming the purposes and principles of the Charter of the United Nations, and reaffirming also that everyone is entitled to all rights and freedoms without distinction of any kind, such as race, colour, sex, language, ­religion, political or other opinion, national or social origin, property, birth or other status, as set forth in the Universal Declaration of Human Rights, Bearing in mind Commission on Human Rights resolutions1 1999/57 of 27 April 19992 and 2000/47 of 25 April 2000,3 Recognizing the indissoluble link between human rights as enshrined in the Universal Declaration of Human Rights and in the international human rights treaties and the foundation of any democratic society, and reaffirming the Vienna Declaration and Programme of Action adopted by the World Conference on Hu­man Rights,4 which states that democracy, development and respect for hu­man rights and fundamental freedoms are interdependent and mutually reinforcing, Recalling that all peoples have the right to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development, Recalling also that, in the Vienna Declaration and Programme of Action, the World Conference on Human Rights recommended that priority should be given to national and international action to promote democracy, development and human rights and that the international community should support the strengthening and promotion of democracy, development and respect for human rights and fundamental freedoms in the entire world, Recalling further its resolutions 53/243 A and B of 13 September 1999, containing, respectively, the Declaration and the Programme of Action for a Culture of Peace, Recognizing and respecting the rich and diverse nature of the community of the world’s democracies, which arise out of all of the world’s social, cultural and religious beliefs and traditions, 1 Resolution 217 A (III). 2 See Official Records of the Economic and Social Council, 1999, Supplement No. 3 (E/1999/23), Chap. II, Sect. A. 3 Ibid., 2000, Supplement No. 3 and corrigendum (E/2000/23 and Corr. 1), Chap. II, Sect. A. 4 A/CONF.157/24 (Part I), Chap. III.

6 ga-Res. 55/96. Promoting and Consolidating Democracy

99

Recognizing that, while all democracies share common features, there is no one universal model of democracy, Reaffirming its commitment to the process of democratization of States, and that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives, Reaffirming that good governance, as referred to in the United Nations Millennium Declaration,5 is among the indispensable factors for building and strengthening peaceful, prosperous and democratic societies, Aware of the crucial importance of the active involvement and contribution of civil society in processes of governance that affect the lives of people, Recalling commitments undertaken by Member States for the promotion of democracy and the rule of law, within the framework of the United Nations and other international organizations, Welcoming measures, such as decision AHG/Dec.141 (XXXV) adopted in 1999 by the Assembly of Heads of State and Government of the Organization of African Unity,6 resolution AG/RES.1080 (XXI-091) adopted in 1991 by the General Assembly of the Organization of American States and the Moscow Document on the Human Dimension adopted in 1991 by the Conference on the Human Dimension of the Conference for Security and Cooperation in Europe, which commit Member States to taking certain steps in the event of an interruption of democratic government, as well as the Commonwealth Declaration adopted at the Commonwealth Heads of Government Meeting, held at Harare in 1991,7 which commits members to fundamental democratic principles, Commending the wish of an increasing number of countries all over the world to devote their energy, means and political will to the building of democratic societies in which individuals have the opportunity to shape their own destiny, Noting the initiatives taken by the countries that participated in the first, second and third International Conference of New or Restored Democracies, held, respectively, at Manila in June 1988, Managua in July 1994 and Bucharest in September 1997, Noting also the ministerial conference entitled “Towards a Community of Democracies,” hosted by the Government of Poland at Warsaw on 26 and 27 June 2000,

5 See resolution 55/2 → Doc. 5. 6 See A/54/424, annex. 7 II. A/46/708, annex.

100

CHAPTER A

Noting further the Forum on Emerging Democracies, held at Sana’a from 27 to 30 June 1999, Noting that the fourth International Conference of New or Restored Democracies is scheduled to be held at Cotonou, Benin, from 4 to 6 December 2000, and also noting the initiative of the Government of Mali to host, at Bamako from 1 to 3 November 2000, following the Moncton Declaration adopted in September 1999 at Moncton, Canada, by the Eighth Summit of la Francophonie,8 an international symposium at the ministerial level on the status of the practices of democracy, rights and freedoms in the French-speaking community, 1. Calls upon States to promote and consolidate democracy, inter alia, by: (a) Promoting pluralism, the protection of all human rights and fundamental freedoms, maximizing the participation of individuals in decisionmaking and the development of effective public institutions, including an independent judiciary, accountable legislature and public service and an electoral system that ensures periodic, free and fair elections; (b) Promoting, protecting and respecting all human rights, including the right to development, and fundamental freedoms, in particular: (i) Freedom of thought, conscience, religion, belief, peaceful assembly and association, as well as freedom of expression, freedom of opinion, and free, independent and pluralistic media; (ii) The rights of persons belonging to national, ethnic, religious or linguistic minorities, including the right freely to express, preserve and develop their identity without any discrimination and in full equality before the law; (iii) The rights of indigenous people; (iv) The rights of children, the elderly and persons with physical or mental disabilities; (v) Actively promoting gender equality with the aim of achieving full equality between men and women; (vi) Taking appropriate measures to eradicate all forms of racism and racial discrimination, xenophobia and related intolerance; (vii) Considering becoming parties to international human rights instruments; (viii) Fulfilling their obligations under the international human rights instruments to which they are parties; (c) Strengthening the rule of law by: (i) Ensuring equality before the law and equal protection under the law; 8 A/54/453, Annex I.

6 ga-Res. 55/96. Promoting and Consolidating Democracy

101

( ii) Ensuring the right to liberty and security of person, the right to equal access to justice, and the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power in the case of detention with a view to avoiding arbitrary arrest; (iii) Guaranteeing the right to a fair trial; (iv) Ensuring due process of law and the right to be presumed innocent until proven guilty in a court of law; (v) Promoting the independence and integrity of the judiciary and, by means of appropriate education, selection, support and allocation of resources, strengthening its capacity to render justice with fairness and efficiency, free from improper or corrupt outside influence; (vi) Guaranteeing that all persons deprived of their liberty are treated with humanity and with respect for the inherent dignity of the human person; (vii) Ensuring appropriate civil and administrative remedies and criminal sanctions for violations of human rights, as well as effective protection for human rights defenders; (viii) Including human rights education in the training for civil servants and law enforcement and military personnel; (ix) Ensuring that the military remains accountable to the democratically elected civilian government; (d) Developing, nurturing and maintaining an electoral system that provides for the free and fair expression of the people’s will through genuine and periodic elections, in particular by: (i) Guaranteeing that everyone can exercise his or her right to take part in the government of his or her country, directly or through freely chosen representatives; (ii) Guaranteeing the right to vote freely and to be elected in a free and fair process at regular intervals, by universal and equal suffrage, conducted by secret ballot and with full respect for the right to freedom of association; (iii) Taking measures, as appropriate, to address the representation of underrepresented segments of society; (iv) Ensuring, through legislation, institutions and mechanisms, the freedom to form democratic political parties that can p ­ articipate in elections, as well as the transparency and fairness of the electoral process, including through appropriate access under the law to funds and free, independent and pluralistic media; (e) Creating and improving the legal framework and necessary mechanisms for enabling the wide participation of all members of civil society in the promotion and consolidation of democracy, by:

102

CHAPTER A

(i) Respecting the diversity of society by promoting associations, dialogue structures, mass media and their interaction as a means of strengthening and developing democracy; (ii) Fostering, through education and other means, awareness and respect for democratic values; (iii) Respecting the right to freedom of peaceful assembly and the exercise of the right freely to form, join and participate in non-governmental organizations or associations, including trade unions; (iv) Guaranteeing mechanisms for consultations with and the  contribution of civil society in processes of governance and encouraging cooperation between local authorities and non-governmental organizations; (v) Providing or improving the legal and administrative framework for nongovernmental, community-based and other civil society organizations; (vi) Promoting civic education and education on human rights, inter alia, in cooperation with organizations of civil society; (f) Strengthening democracy through good governance as referred to in the United Nations Millennium Declaration9 by, inter alia: (i) Improving the transparency of public institutions and policy-making procedures and enhancing the accountability of public officials; (ii) Taking legal, administrative and political measures against corruption, including by disclosing and investigating and ­punishing all those involved in acts of corruption and by criminalizing payment of commissions and bribes to public officials; (iii) Bringing government closer to the people by appropriate  levels of devolution; (iv) Promoting the widest possible public access to information about the activities of national and local authorities, as well as ensuring access by all to administrative remedies, without discrimination; (v) Fostering high levels of competence, ethics and professionalism within the civil service and its cooperation with the public, inter alia, by providing appropriate training for members of the civil ­service; (g) Strengthening democracy by promoting sustainable development, in particular by: (i) Taking effective measures aimed at the progressive realization of economic, social and cultural rights, such as the right to education and the right to a standard of living adequate for health and well-being, 9 See resolution 55/2, → Doc. 5.

6 ga-Res. 55/96. Promoting and Consolidating Democracy

103

including food, clothing, housing, medical care and necessary social services, individually and through international cooperation; (ii) Taking effective measures aimed at overcoming social  inequalities and creating an environment that is conducive to development and to the elimination of poverty; (iii) Promoting economic freedom and social development and pursuing active policies to provide opportunities for productive employment and sustainable livelihoods; (iv) Ensuring equal access to economic opportunities and equal pay and other rewards for work of equal value; (v) Creating a legal and regulatory framework with a view to p ­ romoting sustained economic growth and sustainable development; (h) Enhancing social cohesion and solidarity by: (i) Developing and strengthening, at the local and national levels, ­institutional and educational capabilities to resolve conflicts and disputes peacefully, including through mediation, and to prevent and eliminate the use of violence in addressing societal tensions and disagreements; (ii) Improving social protection systems and ensuring access for all to basic social services; (iii) Encouraging social dialogue and tripartite cooperation with ­respect to labour relations among government, trade unions and ­employer organizations, as reflected in the core Conventions of the International Labour Organization; 2. Requests the Secretary-General to disseminate the present resolution as widely as possible.

104

CHAPTER A

7  g a-Res. 59/201. Enhancing the Role of Regional, Subregional and Other Organizations and Arrangements in Promoting and Consolidating Democracy United Nations A/RES/59/201, adopted by the General Assembly on 20 December 2004 (74th plenary meeting) The General Assembly, Reaffirming the purposes and principles set forth in the Charter of the United Nations, Recalling its resolution 55/96 of 4 December 2000 and all relevant resolutions of the Commission on Human Rights, in particular resolutions 1999/57 of 27 April 1999,1 2000/47 of 25 April 2000,2 2001/41 of 23 April 2001,3 2002/46 of 23 April 2002,4 2003/36 of 23 April 20035 and 2004/30 of 19 April 2004,6 Recalling also that all peoples have the right to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development, Reaffirming its resolve, expressed, inter alia, in the United Nations Millennium Declaration,7 to implement the principles and practices of democracy, and recognizing the diverse nature of the community of the world’s democracies, 1. Declares that the essential elements of democracy include respect for human rights and fundamental freedoms, inter alia, freedom of association and peaceful assembly and of expression and opinion, and the right to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote and to be elected at genuine periodic free elections by universal and equal suffrage and by secret ballot guaranteeing the free expression of the will of the people, as well as a pluralistic system of political parties and organizations, respect for the rule of law, the separation of powers, the independence of the judiciary, transparency and accountability in public administration, and free, independent and pluralistic media; 1 See Official Records of the Economic and Social Council, 1999, Supplement No. 3 (E/1999/23), Chap. II, Sect. A. 2 Ibid., 2000, Supplement No. 3 and corrigendum (E/2000/23 and Corr. 1), Chap. II, Sect. A. 3 Ibid., 2001, Supplement No. 3 (E/2001/23), Chap. II, Sect. A. 4 Ibid., 2002, Supplement No. 3 (E/2002/23), Chap. II, Sect. A. 5 Ibid., 2003, Supplement No. 3 (E/2003/23), Chap. II, Sect. A. 6 Ibid., 2004, Supplement No. 3 (E/2004/23), Chap. II, Sect. A. 7 See resolution 55/2.

7  ga-Res. 59/201. Enhancing the Role of OTHER ORGANIZATIONS

105

2. Reaffirms that the promotion and protection of all human rights is a basic prerequisite for the existence of a democratic society, and recognizes the importance of the continuous development and strengthening of the United Nations human rights mechanisms for the consolidation of democracy; 3. Recognizes the importance of all actions taken at the regional and subregional levels that are aimed at facilitating the establishment, development and consolidation of democratic institutions, based on democratic values and principles and capable of responding to the specific needs of the countries in each region; 4. Acknowledges the importance of better awareness of democratic values and principles in all regions and for all people; 5. Reaffirms that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives and, in that context, that the promotion and protection of human rights and fundamental freedoms at the national, regional and international levels should be universal and conducted without conditions attached; the international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world; 6. Acknowledges that democracy contributes substantially to preventing violent conflict, to accelerating reconciliation and reconstruction in post-conflict peacebuilding and, in peacetime, to resolving disputes that may impede economic and social progress; 7. Recognizes the need for Member States to pay further special attention and contribute to democratic institution-building by including relevant objectives to this effect in the mandates of peacemaking, peacekeeping and postconflict peacebuilding operations and by providing adequate resources in that regard; 8. Invites intergovernmental regional, subregional and other organizations and arrangements, as well as non-governmental organizations, to engage actively in work at the local, national, subregional and regional levels for the constant promotion and consolidation of democracy and to initiate exchanges with the United Nations system on their experiences, inter alia, by: (a) Identifying and disseminating best practices and experiences at the regional, subregional and cross-regional levels in promoting and protecting democratic processes; (b) Establishing and supporting regional, subregional and national civic education programmes that provide access to information on democratic governance and stimulate dialogue on the functioning of democracy;

106

CHAPTER A

( c) Encouraging the study, in schools and universities, of democracy, human rights, good governance and the functioning of public ­administration, political institutions and civil society organizations; (d) Elaborating and widely distributing reports, assessments, training material, handbooks, case studies and documentation on alternative types of democratic constitutions, electoral systems and administration so as to assist populations in making more informed choices; (e) Encouraging the use of democratic consultative mechanisms in disputes as an opportunity for the parties involved to advance their interests within institutional frameworks; (f) Working with the focal point for democracy of the Office of the United Nations High Commissioner for Human Rights; 9. Invites States members of intergovernmental regional organizations and arrangements to include or reinforce the provisions of the constitutive acts of the organizations and arrangements that are aimed at promoting democratic values and principles and protecting and consolidating democracy in their respective societies; 10. Welcomes the adoption by various regional, subregional and other organizations and arrangements of institutional rules designed to prevent situations that threaten democratic institutions; 11. Invites intergovernmental regional organizations and arrangements to institutionalize dialogue among themselves on joint actions to promote and consolidate democracy and democratic practices in all areas; 12. Encourages Member States and intergovernmental regional and crossregional organizations and arrangements, as well as non-governmental organizations, to initiate networks and partnerships with a view to assisting the Governments and civil society in their respective regions in disseminating knowledge and information about the role of democratic institutions and mechanisms in meeting the political, economic, social and cultural challenges in their respective societies; 13. Urges the continuation and expansion of activities carried out by the United Nations system, intergovernmental organizations and Member States to promote and consolidate democracy within the framework of international cooperation; 14. Invites the United Nations system to identify, develop and coordinate effective policies of assistance in the field of democracy and, in this context, to support programmes of technical assistance to States, upon their request, aimed at: (a) Developing a competent, independent and impartial judiciary and accountable government institutions;

7  ga-Res. 59/201. Enhancing the Role of OTHER ORGANIzATIONS

107

(b) Strengthening political party systems, free and independent media and civil society organizations; (c) Fostering a democratic culture; 15. Calls upon the Office of the United Nations High Commissioner for Human Rights to stimulate dialogue and interaction within the United Nations system and between the United Nations system and interested intergovernmental regional, subregional and other organizations and arrangements on the ways and means of promoting democratic values and principles, on the basis of the present resolution and other relevant resolutions of the General Assembly and of the Commission on Human Rights, and, to this end, to invite, inter alia, the Department of Political Affairs of the Secretariat, including its Electoral Assistance Division, and the Department of Economic and Social Affairs of the Secretariat, the United Nations Development Programme, the International Labour Organization, the United Nations Educational, Scientific and Cultural Organization and regional organizations to inform the Commission on Human Rights, at its sixty-first session, of action taken to promote and consolidate democracy; 16. Requests the Secretary-General to bring the present resolution to the attention of Member States.

108

CHAPTER A

8 In Larger Freedom: Towards Development, Security and Human Rights for All – Freedom from Want, Freedom from Fear, Freedom to Live in Dignity, Strengthening un United Nations A/59/2005, Report of the Secretary-General, Follow-up to the outcome of the Millennium Summit […] IV Freedom to Live in Dignity 127. In the Millennium Declaration, Member States stated that they would spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms. In so doing, they recognized that while freedom from want and fear are essential they are not enough. All human beings have the right to be treated with dignity and respect. 128. The protection and promotion of the universal values of the rule of law, human rights and democracy are ends in themselves. They are also essential for a world of justice, opportunity and stability. No security agenda and no drive for development will be successful unless they are based on the sure foundation of respect for human dignity. 129. When it comes to laws on the books, no generation has inherited the riches that we have. We are blessed with what amounts to an international bill of human rights, among which are impressive norms to protect the weakest among us, including victims of conflict and persecution. We also enjoy a set of international rules on everything from trade to the law of the sea, from terrorism to the environment and from small arms to weapons of mass destruction. Through hard experience, we have become more conscious of the need to build human rights and rule-of-law provisions into peace agreements and ensure that they are implemented. And even harder experience has led us to grapple with the fact that no legal principle – not even sovereignty – should ever be allowed to shield genocide, crimes against humanity and mass human suffering. 130. But without implementation, our declarations ring hollow. Without action, our promises are meaningless. Villagers huddling in fear at the sound of Government bombing raids or the appearance of murderous militias on the horizon find no solace in the unimplemented words of the Geneva Conventions, to say nothing of the international community’s solemn promises of “never again” when reflecting on the horrors of Rwanda a decade ago. Treaties prohibiting torture are cold comfort to prisoners abused by their captors, particularly

8  SG-REPORT: IN LARGER FREEDOM

109

if the international human rights machinery enables those responsible to hide behind friends in high places. A war-weary population infused with new hope after the signing of a peace agreement quickly reverts to despair when, instead of seeing tangible progress towards a Government under the rule of law, it sees war lords and gang leaders take power and become laws unto themselves. And solemn commitments to strengthen democracy at home, which all States made in the Millennium Declaration, remain empty words to those who have never voted for their rulers and who see no sign that things are changing. 131. To advance a vision of larger freedom, the United Nations and its Member States must strengthen the normative framework that has been so impressively advanced over the last six decades. Even more important, we must take concrete steps to reduce selective application, arbitrary enforcement and breach without consequence. Those steps would give new life to the commitments made in the Millennium Declaration. 132. Accordingly, I believe that decisions should be made in 2005 to help strengthen the rule of law internationally and nationally, enhance the stature and structure of the human rights machinery of the United Nations and more directly support efforts to institute and deepen democracy in nations around the globe. We must also move towards embracing and acting on the “responsibility to protect” potential or actual victims of massive atrocities. The time has come for Governments to be held to account, both to their citizens and to each other, for respect of the dignity of the individual, to which they too often pay only lip service. We must move from an era of legislation to an era of implementation. Our declared principles and our common interests demand no less. A Rule of Law 133. I strongly believe that every nation that proclaims the rule of law at home must respect it abroad and that every nation that insists on it abroad must enforce it at home. Indeed, the Millennium Declaration reaffirmed the commitment of all nations to the rule of law as the all-important framework for advancing human security and prosperity. Yet in many places, Governments and individuals continue to violate the rule of law, often without consequences for them but with deadly consequences for the weak and the vulnerable. In other instances, those who make no pretence of being bound by the rule of law, such as armed groups and terrorists, are able to flout it because our peacemaking institutions and compliance mechanisms are weak. The rule of law as a mere concept is not enough. New laws must be put into place, old ones must be put into practice and our institutions must be better equipped to strengthen the rule of law. […]

110

CHAPTER A

B Human Rights 140. Human rights are as fundamental to the poor as to the rich, and their protection is as important to the security and prosperity of the developed world as it is to that of the developing world. It would be a mistake to treat human rights as though there were a trade-off to be made between human rights and such goals as security or development. We only weaken our hand in fighting the horrors of extreme poverty or terrorism if, in our efforts to do so, we deny the very human rights that these scourges take away from citizens. Strategies based on the protection of human rights are vital for both our moral standing and the practical effectiveness of our actions. […] C Democracy 148. The Universal Declaration of Human Rights,19 adopted by the General Assembly in 1948, enunciated the essentials of democracy. Ever since its adoption, it has inspired constitution-making in every corner of the world, and it has contributed greatly to the eventual global acceptance of democracy as a universal value. The right to choose how they are ruled, and who rules them, must be the birthright of all people, and its universal achievement must be a central objective of an Organization devoted to the cause of larger freedom. 149. In the Millennium Declaration, every Member State pledged to strengthen its capacity to implement the principles and practices of democracy. That same year, the General Assembly adopted a resolution on promoting and consolidating democracy.20 More than 100 countries have now signed the Warsaw Declaration of the Community of Democracies (see A/55/328, Annex I), and in 2002 that Community endorsed the Seoul Plan of Action (see A/57/618, Annex I), which listed the essential elements of representative democracy and set forth a range of measures to promote it. Regional organizations in many parts of the world have made democracy promotion a core component of their work, and the emergence of a strong community of global and regional civil society organizations that promote democratic governance is also encouraging. All of which reinforces the principle that democracy does not belong to any country or region but is a universal right. 150. However, commitments must be matched by performance and protecting democracy requires vigilance. Threats to democracy have by no means ceased to exist. As we have seen time and again, the transition to democracy is delicate and difficult and can suffer severe setbacks. The United Nations assists Member States by supporting emerging democracies with legal, technical and financial assistance and advice. For example, the United Nations has given concrete support for elections in more and more countries, often at decisive moments in their history – more than 20 in the last year alone, including Afghanistan, Palestine, Iraq and Burundi. Similarly, the Organization’s work

8  SG-REPORT: IN LARGER FREEDOM

111

to improve governance throughout the developing world and to rebuild the rule of law and State institutions in war-torn countries is vital to ensuring that democracy takes root and endures. 151. The United Nations does more than any other single organization to promote and strengthen democratic institutions and practices around the world, but this fact is little known. The impact of our work is reduced by the way we disperse it among different parts of our bureaucracy. It is time to join up the dots. But there are significant gaps in our capacity in several critical areas. The Organization as a whole needs to be better coordinated and should mobilize resources more effectively. The United Nations should not restrict its role to norm-setting but should expand its help to its members to further broaden and deepen democratic trends throughout the world. To that end, I support the creation of a democracy fund at the United Nations to provide assistance to countries seeking to establish or strengthen their democracy. Furthermore, I intend to ensure that our activities in this area are more closely coordinated by establishing a more explicit link between the democratic governance work of the United Nations Development Programme and the Electoral Assistance Division of the Department of Political Affairs. 152. In Sections II to IV, I have outlined the interconnected challenges of advancing the cause of larger freedom in the new century. I have also indicated what I believe to be the essential elements of our collective response, including many areas where I believe the United Nations should be better equipped to make its proper contribution. In Section V below, I shall focus in some detail on the specific reforms that I believe are needed if our Organization is to play its due part in shaping and implementing such a collective response across the whole range of global issues. […] Annex For decision by Heads of State and Government […] III Freedom to Live in Dignity 7. I urge Heads of State and Government to recommit themselves to supporting the rule of law, human rights and democracy – principles at the heart of the Charter of the United Nations and the Universal Declaration of Human Rights. To this end, they should: (a) Reaffirm their commitment to human dignity by action to strengthen the rule of law, ensure respect for human rights and fundamental free-

112

CHAPTER A

doms and promote democracy so that universally recognized principles are implemented in all countries; (b) Embrace the “responsibility to protect” as a basis for collective action against genocide, ethnic cleansing and crimes against humanity, and agree to act on this responsibility, recognizing that this responsibility lies first and foremost with each individual State, whose duty it is to protect its population, but that if national authorities are unwilling or unable to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect civilian populations, and that if such methods appear insufficient the Security Council may out of necessity decide to take action under the Charter, including enforcement action, if so required; (c) Support the 2005 treaty event, focusing on 31 multilateral t­ reaties, and encourage any Government that has not done so to agree to ratify and implement all treaties relating to the protection of civilians; (d) Commit themselves to supporting democracy in their own countries, their regions and the world, and resolve to strengthen the United Nations capacity to assist emerging democracies, and to that end welcome the creation of a Democracy Fund at the United Nations to provide funding and technical assistance to countries seeking to establish or strengthen their democracy; (e) Recognize the important role of the International Court of Justice in adjudicating disputes among countries and agree to consider means to strengthen the work of the Court. […]

9 GA-Res. 60/1. World Summit Outcome

9

113

ga-Res. 60/1. World Summit Outcome

United Nations A/RES/60/1, adopted by the General Assembly on 16 September 2005 (8th plenary meeting) […] 58. […] (g) Promoting increased representation of women in Government decisionmaking bodies, including through ensuring their equal opportunity to participate fully in the political process. […] IV Human Rights and the Rule of Law 119. We recommit ourselves to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations, and call upon all parts of the United Nations to promote human rights and fundamental freedoms in accordance with their mandates. 120. We reaffirm the solemn commitment of our States to fulfil their obligations to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights38 and other instruments relating to human rights and international law. The universal nature of these rights and freedoms is beyond question. […] Democracy 135. We reaffirm that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of selfdetermination. We stress that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing. 38

Resolution 217 A (III).

114

CHAPTER A

136. We renew our commitment to support democracy by strengthening countries’ capacity to implement the principles and practices of democracy and resolve to strengthen the capacity of the United Nations to assist Member States upon their request. We welcome the establishment of a Democracy Fund at the United Nations. We note that the advisory board to be established should reflect diverse geographical representation. We invite the SecretaryGeneral to help to ensure that practical arrangements for the Democracy Fund take proper account of existing United Nations activity in this field. 137. We invite interested Member States to give serious consideration to ­contributing to the Fund. […]

10 GA-RES. 60/164. ELECTORAL PROCESSES AND HUMAN RIGHTS

115

10  ga-Res. 60/164. Respect for the Principles of National Sovereignty and Diversity of Democratic Systems in Electoral Processes as an Important Element for the Promotion and Protection of Human Rights United Nations A/RES/60/164, adopted by the General Assembly on 16 December 2005 (64th plenary meeting) The General Assembly, Reaffirming the purpose of the United Nations to develop friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples and to take other appropriate measures to strengthen universal peace, Recalling its resolution 1514 (XV) of 14 December 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, Recalling also its resolution 2625 (XXV) of 24 October 1970, by which it approved the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, Reaffirming the right to self-determination, by virtue of which all peoples can freely determine their political status and freely pursue their economic, social and cultural development, Recognizing that the principles enshrined in Article 2 of the Charter, in particular respect for national sovereignty, should be respected in the holding of elections, Recognizing also the richness and diversity of democratic political systems and models of free and fair electoral processes in the world, based on national and regional particularities and various backgrounds, Stressing the responsibility of States in ensuring ways and means to facilitate full and effective popular participation in their electoral processes, Recognizing the contribution made by the United Nations of electoral assistance provided to numerous States upon their request, Reaffirming the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter, other instruments relating to human rights, and international law, Reaffirming also that democracy, sustainable development and respect for human rights and fundamental freedoms, as well as good governance at all levels, are interdependent and mutually reinforcing, and determined to strengthen respect for the rule of law at the national and international levels,

116

CHAPTER A

Welcoming the commitment of all Member States, expressed in the United Nations Millennium Declaration,1 to work collectively for more inclusive political processes allowing genuine participation by all citizens in all countries, 1. Reaffirms that all peoples have the right to self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, and that every State has the duty to respect that right, in accordance with the provisions of the Charter of the United Nations; 2. Reiterates that periodic, fair and free elections are important elements for the promotion and protection of human rights; 3. Reaffirms the right of peoples to determine methods and to establish institutions regarding electoral processes and, consequently, that there is no single model of democracy or of democratic institutions and that States should ensure all the necessary mechanisms and means to facilitate full and effective popular participation in those processes; 4. Also reaffirms that free development of the national electoral process in each State should be fully honoured in a manner that fully respects the principles established in the Charter and in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations; 5. Calls upon all States to refrain from financing political parties or other  ­organizations in any other State in a way that is contrary to the principles of the Charter and that undermines the legitimacy of its electoral processes; 6. Condemns any act of armed aggression or threat or use of force against peoples, their elected Governments or their legitimate leaders; 7. Reaffirms that the will of the people shall be the basis of the authority of government and that this will shall be expressed in periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures; 8. Decides to continue its consideration of the question of the respect for the principles of national sovereignty and diversity of democratic systems in electoral processes as an important element for the promotion and protection of human rights at its sixty-second session under the item entitled “Human rights questions.”

1 See resolution 55/2.

11 GA-RES. 66/285. SUPPORT FOR NEW OR RESTORED DEMOCRACIES

117

11  g a-Res. 66/285. Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies United Nations A/RES/66/285, adopted by the General Assembly on 3 July 2012 (121st plenary meeting) The General Assembly, Recalling its resolutions 49/30 of 7 December 1994, 50/133 of 20 December 1995, 51/31 of 6 December 1996, 52/18 of 21 November 1997, 53/31 of 23 November 1998, 54/36 of 29 November 1999, 55/43 of 27 November 2000, 56/96 of 14 December 2001, 56/269 of 27 March 2002, 58/13 of 17 November 2003, 58/281 of 9 February 2004, 60/253 of 2 May 2006, 61/226 of 22 December 2006, 62/7 of 8 November 2007 and 64/12 of 9 November 2009, Recalling also the declarations and plans of action of the six international conferences of new or restored democracies, adopted in Manila in 1988,1 Managua in 1994,2 Bucharest in 1997,3 Cotonou in 2000,4 Ulaanbaatar in 20035 and Doha in 2006,6 Reaffirming the Charter of the United Nations, including the principles and purposes contained therein, and recognizing that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations, Stressing that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, Reaffirming that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives, Reaffirming also that, while democracies share common features, there is no single model of democracy and that democracy does not belong to any country or region, and reaffirming further the necessity of due respect for sovereignty, the right to self-determination and territorial integrity,

1 2 3 4 5 6

A/43/538, annex. A/49/713, Annexes I and II. A/52/334, annex, appendix. A/55/889, annex. A/58/387, Annexes I and II. A/61/581, annex.

118

CHAPTER A

Bearing in mind that the activities of the United Nations carried out in support of efforts of Governments to promote and consolidate democracy are undertaken in accordance with the Charter and only at the specific request of the Member States concerned, Mindful of the central role of parliaments and the active involvement of civil society organizations and media and their interaction with Governments at all levels in promoting democracy, freedom, equality, participation, development, respect for human rights and fundamental freedoms and the rule of law, Noting the role of the International Institute for Democracy and Electoral Assistance in support of the New or Restored Democracies Movement, Noting also the establishment of the International Day of Democracy on 15 September, as noted in resolution 62/7, which was celebrated for the first time in 2008, 1. Takes note with appreciation of the report of the Secretary-General;7 2. Encourages Governments to strengthen national programmes devoted to the promotion and consolidation of democracy, including through increased bilateral, regional and international cooperation, taking into account innovative approaches and best practices; 3. Invites Member States, the relevant organizations of the United Nations system, other intergovernmental organizations, national parliaments, including in collaboration with the Inter-Parliamentary Union and other parliamentary organizations, and non-governmental organizations to contribute actively to the follow-up process of the international conferences of new or restored democracies; 4. Invites all Member States, organizations of the United Nations system, regional and intergovernmental organizations, non-governmental organizations and individuals to continue to commemorate the International Day of Democracy in an appropriate manner that contributes to raising public awareness; 5. Requests the Secretary-General to continue to take the necessary measures, within existing resources, for the observance by the United Nations of the International Day of Democracy; 6. Urges the Secretary-General to continue to improve the capacity of the Organization to respond effectively to the requests of Member States by providing sustainable assistance for building national capacity and adequate support for their efforts to achieve the goals of good governance and democratization, including through the activities of the United Nations Democracy Fund; 7 A/66/353.

11 GA-RES. 66/285. SUPPORT FOR NEW OR RESTORED DEMOCRACIES

119

7. Also urges the Secretary-General to continue efforts to improve coherence and coordination among United Nations initiatives in the area of democracy assistance, including interactions with all stakeholders, in order to ensure that democracy assistance is more effectively integrated into the work of the Organization; 8. Requests the Secretary-General to examine options for strengthening the support provided by the United Nations system for the efforts of Member States to consolidate democracy and achieve good governance; 9. Also requests the Secretary-General to submit a report to the General Assembly at its sixty-eighth session on the implementation of the present resolution; 10. Decides to include in the provisional agenda of its sixty-eighth session the item entitled “Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies.”

120 12

CHAPTER A

ga-Res. 67/18. Education for Democracy

United Nations A/RES/67/18, adopted by the General Assembly on 28 November 2012 (43rd plenary meeting) The General Assembly, Reaffirming the Charter of the United Nations, including the principles and purposes contained therein, and recognizing that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations, Reaffirming also the right of everyone to education, which is enshrined in the Universal Declaration of Human Rights,1 the International Covenant on Economic, Social and Cultural Rights,2 the Convention on the Rights of the Child,3 the Convention on the Elimination of All Forms of Discrimination against Women,4 the Convention on the Rights of Persons with Disabilities5 and in other relevant instruments, Recalling the plan of action for the second phase (2010–2014) of the World Programme for Human Rights Education,6 Reaffirming that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives,7 Recalling the United Nations Millennium Declaration8 wherein the Member States committed themselves to sparing no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development, and resolved to respect fully and uphold the Universal Declaration of Human Rights, to strive for the full protection and promotion in all countries of civil, political, economic, social and cultural rights for all and to strengthen the capacity of all countries to implement the principles and practices of democracy and respect for human rights, including minority rights, 1 2 3 4 5 6

Resolution 217 A (III). Resolution 2200 A (XXI), annex. United Nations, Treaty Series, vol. 1577, No. 27531. Ibid., vol. 1249, No. 20378. Ibid., vol. 2515, No. 44910. Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 53A (A/65/53/ Add.1), Chap. II, resolution 15/11. 7 Resolution 60/1, para. 135. 8 Resolution 55/2.

12 GA-Res. 67/18. Education for Democracy

121

Recognizing that, while democracies share common features, there is no single model of democracy and that democracy does not belong to any country or region, Mindful of the Vienna Declaration and Programme of Action of the World Conference on Human Rights,9 the World Plan of Action on Education for Human Rights and Democracy adopted by the International Congress on Education for Human Rights and Democracy,10 the World Programme for Human Rights Education proclaimed by the General Assembly in its resolution 59/113 A of 10 December 2004 and the United Nations Declaration on Human Rights Education and Training,11 Recalling with appreciation the establishment of the United Nations Democracy Fund and the efforts of the Fund to advance the United Nations democracy agenda as well as the operational activities in support of democratization processes carried out by the United Nations system, including by the Department of Political Affairs of the Secretariat, the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme, Acknowledging the role of international, regional and other intergovernmental organizations in support of democracy, Recognizing that education is key to the strengthening of democratic ­institutions, the realization of human rights and the achievement of all ­international development goals, including the Millennium Development Goals, the development of human potential, poverty alleviation and the fostering of greater understanding among peoples, 1. Reaffirms the fundamental link between democratic governance, peace, development and the promotion and protection of all human rights and fun­damental freedoms, which are interdependent and mutually ­reinforcing; 2. Takes note of the Education First initiative launched by the Secretary-General on 26 September 2012, in particular its third priority area, on f­ostering global citizenship; 3. Encourages the Secretary-General, United Nations agencies such as the United Nations Educational, Scientific and Cultural Organization, the United Nations Children’s Fund, the United Nations Population Fund, the United Nations Development Programme, and the United Nations Entity for Gender 9 A/CONF.157/24 (Part I), Chap. III. 10 A/CONF.157/PC/42/Add.6. 11 Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 53 (A/66/53), Chap. I, resolution 16/1, annex.

122

CHAPTER A

Equality and the Empowerment of Women (un-Women), and other relevant stakeholders to strengthen their efforts to promote the values of peace, human rights, democracy, respect for religious and cultural diversity and justice through education; 4. Strongly encourages Member States to integrate education for democracy, along with civic education and human rights education, into national education standards and to develop and strengthen national and sub­national programmes, curricula and curricular and extracurricular educational activities aimed at the promotion and consolidation of democratic values and democratic governance and human rights, t­aking into account innovative approaches and best practices in the field, in order to facilitate citizens’ empowerment and participation in political life and policymaking at all levels; 5. Invites United Nations agencies, funds and programmes, including the United Nations Democracy Fund, the United Nations Development Programme, the United Nations Children’s Fund, the Office of the United Nations High Commissioner for Human Rights and the United Nations Educational, Scientific and Cultural Organization, to provide appropriate expertise and resources for the development of relevant educational programmes and materials for democracy; 6. Encourages international, regional and other intergovernmental organizations, within their respective mandates, to share their best practices and experiences in the field of education for democracy, including but not limited to civic education, with each other and with the United Nations system, as appropriate; 7. Invites the Special Rapporteur on the right to education to seek, in close cooperation with Member States, the views of Governments, United Nations agencies and programmes and civil society, and other relevant United Nations mandate holders in order that he may include in his next report to the General Assembly, at its sixty-ninth session, an update on the efforts of Member States in the field of education for democracy; 8. Decides to continue its consideration of the issue of education for democracy at its sixty-ninth session, under the agenda item entitled “Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields”; 9. Invites Governments, agencies and organizations of the United Nations system and intergovernmental and non-governmental organizations to intensify their efforts to promote education for democracy, and requests the Secretary-General, within existing reporting obligations, to report to the General Assembly at its sixty-ninth session on the implementation of the present resolution.

13 GA-RES. 68/164. ELECTIONS AND DEMOCRATIZATION

123

13  g a-Res. 68/164. Strengthening the Role of the United Nations in Enhancing Periodic and Genuine Elections and the Promotion of Democratization United Nations A/RES/68/164, adopted by the General Assembly on 18 December 2013 (70th plenary meeting) The General Assembly, Reaffirming that democracy is a universal value based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives, Reaffirming also that, while democracies share common features, there is no single model of democracy and that democracy does not belong to any country or region, and reaffirming further the necessity of due respect for sovereignty and the right to self-determination, Stressing that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, Reaffirming that Member States are responsible for organizing, conducting and ensuring free and fair electoral processes and that Member States, in the exercise of their sovereignty, may request that international organizations provide advisory services or assistance for strengthening and developing their electoral institutions and processes, including sending preliminary missions for that purpose, Recognizing the importance of fair, periodic and genuine elections, including in new democracies and countries undergoing democratization, in order to empower citizens to express their will and to promote successful transition to long-term sustainable democracies, Recognizing also that Member States are responsible for ensuring free and fair elections, free of intimidation, coercion and tampering of vote counts, and that all such acts are sanctioned accordingly, Recalling its previous resolutions on the subject, in particular resolution 66/163 of 19 December 2011, Recalling also all relevant Human Rights Council resolutions on the topic, including resolutions 19/11 of 22 March 2012,1 19/36 of 23 March 2012,1 22/10 of 21 March 20132 and 24/8 of 26 September 2013,3

1 See Official Records of the General Assembly, Sixty-seventh Session, Supplement No. 53 and corrigendum (A/67/53 and Corr. 1), Chap. III, Sect. A. 2 Ibid., Sixty-eighth Session, Supplement No. 53 (A/68/53), chap. IV, sect. A. 3 Ibid., Supplement No. 53A (A/68/53/Add.1), Chap. III.

124

CHAPTER A

Reaffirming that United Nations electoral assistance and support for the promotion of democratization are provided only at the specific request of the Member State concerned, Noting with satisfaction that increasing numbers of Member States are using elections as a peaceful means of discerning the will of the people, which builds confidence in representational governance and contributes to greater national peace and stability, and which may contribute to regional stability, Recalling the Universal Declaration of Human Rights, adopted on 10 December 1948,4 in particular the principle that the will of the people, as expressed through periodic and genuine elections, shall be the basis of government authority, as well as the right freely to choose representatives through periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures, Reaffirming the International Covenant on Civil and Political Rights,5 the Convention on the Elimination of All Forms of Discrimination against Women,6 the International Convention on the Elimination of All Forms of Racial Discrimination7 and the Convention on the Rights of Persons with Disabilities,8 and reaffirming in particular that citizens, without distinction of any kind, have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives, and to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors, Reaffirming also that the active participation of women, on equal terms with men, at all levels of decision-making is essential to the achievement of equality, sustainable development, peace and democracy, Stressing the importance, generally and in the context of promoting fair and free elections, of respect for the freedom to seek, receive and impart information, in accordance with the International Covenant on Civil and Political Rights, and noting in particular the fundamental importance of access to information and media freedom, Recognizing the need for strengthening democratic processes, electoral institutions and national capacity-building in requesting countries, including the capacity to administer fair elections, promote voter education, the 4 5 6 7 8

Resolution 217 A (III). See resolution 2200 A (XXI), annex. United Nations, Treaty Series, vol. 1249, No. 20378. Ibid., vol. 660, No. 9464. Ibid., vol. 2515, No. 44910.

13 GA-RES. 68/164. ELECTIONS AND DEMOCRATIZATION

125

development of electoral expertise and technology and the participation of women on equal terms with men, provide the necessary conditions to ensure the effective and full participation of all persons with disabilities on an equal basis with others, increase citizen participation and provide civic education, including to youth, in requesting countries in order to consolidate and regularize the achievements of previous elections and support subsequent elections, Noting the importance of ensuring orderly, open, fair and transparent democratic processes that protect the rights to peaceful assembly, association and freedom of expression and opinion, Noting also that the international community can contribute to the creation of conditions which could foster stability and security throughout the preelection, election and post-election periods in transitional and post-conflict situations, Reiterating that transparency is a fundamental basis for free and fair elections, which contribute to the accountability of Governments to their citizens, which, in turn, is an underpinning of democratic societies, Acknowledging, in this regard, the importance of international observation of elections for the promotion of free and fair elections and its contribution to enhancing the integrity of election processes in requesting countries, to promoting public confidence and electoral participation and to mitigating the potential for election-related disturbances, Acknowledging also that extending invitations regarding international electoral assistance and/or observation is the sovereign right of Member States, and welcoming the decisions of those States that have requested such assistance and/or observation, Welcoming the support provided by Member States to the electoral assistance activities of the United Nations, inter alia, through the provision of electoral experts, including electoral commission staff, and observers, as well as through contributions to the United Nations Trust Fund for Electoral Assistance, the Democratic Governance Thematic Trust Fund of the United Nations Development Programme and the United Nations Democracy Fund, Recognizing that electoral assistance, particularly through appropriate, sustainable and cost-effective electoral technology, supports the electoral processes of developing countries, Recognizing also the coordination challenges posed by the multiplicity of actors involved in electoral assistance both within and outside the United Nations, Welcoming the contributions made by international and regional organizations and also by non-governmental organizations to enhancing the effectiveness

126

CHAPTER A

of the principle of periodic and genuine elections and the promotion of democratization, Recognizing that the importance of the links that exist between development, peace, human rights, the rule of law and democratic governance, including the holding of free and fair elections, should be given due consideration in the elaboration of the post-2015 development agenda, 1. Welcomes the report of the Secretary-General;9 2. Commends the electoral assistance provided upon request to Member States by the United Nations, and requests that such assistance continue on a caseby-case basis in accordance with the evolving needs and legislation of requesting countries to develop, improve and refine their electoral institutions and processes, recognizing that the responsibility for organizing free and fair elections lies with Governments; 3. Reaffirms that the electoral assistance provided by the United Nations should continue to be carried out in an objective, impartial, neutral and independent manner; 4. Requests the Under-Secretary-General for Political Affairs, in his role as United Nations focal point for electoral assistance matters, to continue to regularly inform Member States about the requests received and the nature of any assistance provided; 5. Requests that the United Nations continue its efforts to ensure, before undertaking to provide electoral assistance to a requesting State, that there is adequate time to organize and carry out an effective mission providing such assistance, including the provision of long-term technical cooperation, that conditions exist to allow a free and fair election and that the results of the mission will be reported comprehensively and consistently; 6. Notes the importance of adequate resources for the administration of efficient and transparent elections at the national and local levels, and recommends that Member States provide adequate resources for those elections, including considering the possibility of establishing internal funding, where feasible; 7. Reaffirms the obligation of all States to take all appropriate measures to ensure that every citizen has the effective right and opportunity to participate in elections on an equal basis; 8. Calls upon all States to enhance the political participation of women, accelerate the achievement of equality between men and wo­ men and, 9 A/68/301.

13 GA-RES. 68/164. ELECTIONS AND DEMOCRATIZATION

127

in all situations, promote and protect the human rights of women with respect to voting in elections and public referendums and being eligible for election to publicly elected bodies on equal terms with men; 9. Recommends that, throughout the timespan of the entire electoral cycle, including before and after elections, as appropriate, on the basis of a needs assessment and in accordance with the evolving needs of requesting Member States, bearing in mind sustainability and cost-­effectiveness, the United Nations continue to provide technical advice and other assistance to requesting States and electoral institutions in order to help strengthen their democratic processes, also bearing in mind that the relevant office may provide additional assistance in the form of mediation and good offices, upon the request of Member States; 10. Notes with appreciation the additional efforts being made to enhance cooperation with other international, governmental and non-governmental organizations in order to facilitate more comprehensive and needs-specific responses to requests for electoral assistance, encourages those organizations to share knowledge and experience in order to promote best practices in the assistance they provide and in their reporting on electoral processes, and expresses its appreciation to those Member States, regional organizations and non-governmental organizations that have provided observers or technical experts in support of United Nations electoral assistance efforts; 11. Acknowledges the aim of harmonizing the methods and standards of the many intergovernmental and non-governmental organizations engaged in observing elections, and in this regard expresses appreciation for the Declaration of Principles for International Election Observation and the Code of Conduct for International Election Observers, which elaborate guidelines for international electoral observation; 12. Recalls the establishment by the Secretary-General of the United Nations Trust Fund for Electoral Assistance, and, bearing in mind that the Fund is currently close to depletion, calls upon Member States to consider contributing to the Fund; 13. Encourages the Secretary-General, through the United Nations focal point for electoral assistance matters and with the support of the Electoral Assistance Division of the Department of Political Affairs of the Secretariat, to continue responding to the evolving nature of requests for assistance and the growing need for specific types of medium-term expert assistance aimed at supporting and strengthening the existing capacity of the requesting Government, in particular by enhancing the capacity of national electoral institutions; 14. Requests the Secretary-General to provide the Electoral Assistance Division with adequate human and financial resources to allow it to carry out its ­mandate,

128

CHAPTER A

including to enhance the accessibility and diversity of the roster of electoral experts and the Organization’s electoral institutional memory, and to continue to ensure that the Office of the United Nations High Commissioner for Human Rights is able to respond, within its mandate and in close coordination with the Division, to the numerous and increasingly complex and comprehensive requests from Member States for advisory services; 15. Reiterates the need for ongoing comprehensive coordination, under the auspices of the United Nations focal point for electoral assistance matters, between the Electoral Assistance Division, the United Nations Development Programme, the Department of Peacekeeping Operations and the Department of Field Support of the Secretariat and the Office of the High Commissioner to ensure coordination and coherence and avoid duplication of United Nations electoral assistance; 16. Requests the United Nations Development Programme to continue its democratic governance assistance programmes in cooperation with other relevant organizations, in particular those that promote the strengthening of democratic institutions and linkages between civil society and Governments; 17. Reiterates the role of civil society and the importance of its active engagement in the promotion of democratization, and invites Member States to facilitate the full participation of civil society in electoral processes; 18. Also reiterates the importance of reinforced coordination within and outside the United Nations system, and reaffirms the clear leadership role within the United Nations system of the United Nations focal point for electoral assistance matters, including in ensuring system-wide coherence and consistency and in strengthening the institutional memory and the development, dissemination and issuance of United Nations electoral assistance policies; 19. Requests the Secretary-General to report to the General Assembly at its seventieth session on the implementation of the present resolution, in particular on the status of requests from Member States for electoral assistance, and on his efforts to enhance support by the Organization for the democratization process in Member States.

14 GA-RES. 68/175. DEMOCRATIC AND EQUITABLE ORDER

129

14  g a-Res. 68/175. Promotion of a Democratic and Equitable International Order United Nations A/RES/68/175, adopted by the General Assembly on 18 December 2013 (70th plenary meeting) The General Assembly, Recalling its previous resolutions on the promotion of a democratic and equitable international order, including resolution 67/175 of 20 December 2012, and Human Rights Council resolutions 18/6 of 29 September 20111 and 21/9 of 27 September 2012,2 […] Considering the major changes taking place on the international scene and the aspirations of all peoples for an international order based on the principles enshrined in the Charter, including promoting and encouraging respect for human rights and fundamental freedoms for all and respect for the principle of equal rights and self-determination of peoples, peace, democracy, justice, equality, the rule of law, pluralism, development, better standards of living and solidarity, Recognizing that the enhancement of international cooperation in the field of human rights is essential for the full achievement of the purposes of the United Nations, including the effective promotion and protection of all human rights, […] Reaffirming that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing and that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives, […] Emphasizing that democracy is not only a political concept, but that it also has economic and social dimensions, Recognizing that democracy, respect for all human rights, including the right to development, transparent and accountable governance and administration in all sectors of society and effective participation by civil society are an

1 See Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 53A and corrigendum (A/66/53/Add.1 and Corr. 1), Chap. II. 2 Ibid., Sixty-seventh Session, Supplement No. 53A (A/67/53/Add.1), Chap. III.

130

CHAPTER A

essential part of the necessary foundations for the realization of social and people-centred sustainable development, […] Resolved to take all measures within its power to secure a democratic and equitable international order, 1. Affirms that everyone is entitled to a democratic and equitable international order; 2. Also affirms that a democratic and equitable international order fosters the full realization of all human rights for all; 3. Calls upon all Member States to fulfil their commitment expressed in Durban, South Africa, during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance to maximize the benefits of globalization through, inter alia, the strengthening and enhancement of international cooperation to increase equality of opportunities for trade, economic growth and sustainable development, global communications through the use of new technologies and increased intercultural exchange through the preservation and promotion of cultural diversity,5 and reiterates that only through broad and sustained efforts to create a shared future based upon our common humanity and all its diversity can globalization be made fully inclusive and equitable; 4. Declares that democracy includes respect for all human rights and fundamental freedoms and is a universal value based on the freely expressed will of people to determine their own political, economic, social and ­cultural systems and their full participation in all aspects of their lives, and reaffirms the need for universal adherence to and implementation of the rule of law at both the national and international levels; 5. Affirms that a democratic and equitable international order requires, inter alia, the realization of the following: (a) The right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development; (b) The right of peoples and nations to permanent sovereignty over their natural wealth and resources; (c) The right of every human person and all peoples to development; (d) The right of all peoples to peace; (e) The right to an international economic order based on equal participation in the decision-making process, interdependence, mutual interest, solidarity and cooperation among all States; 5 See A/CONF.189/12 and Corr. 1, Chap. I.

14 GA-RES. 68/175. DEMOCRATIC AND EQUITABLE ORDER

131

(f) International solidarity, as a right of peoples and individuals; (g) The promotion and consolidation of transparent, democratic, just and accountable international institutions in all areas of coope­ ration, in particular through the implementation of the principle of  full and equal participation in their respective decision-making mechanisms; (h) The right to equitable participation of all, without any discrimination, in domestic and global decision-making; (i) The principle of equitable regional and gender-balanced representation in the composition of the staff of the United Nations system; (j) The promotion of a free, just, effective and balanced internatio­ nal  information and communications order based on international cooperation for the establishment of a new equilibrium and greater ­reciprocity in the international flow of information, in particular correcting the inequalities in the flow of information to and from developing countries; (k) Respect for cultural diversity and the cultural rights of all, since this enhances cultural pluralism, contributes to a wider exchange of knowledge and understanding of cultural backgrounds, advances the application and enjoyment of universally accepted human rights across the world and fosters stable, friendly relations among peoples and nations worldwide; (l) The right of every person and all peoples to a healthy environment and to enhanced international cooperation that responds effectively to the needs for assistance of national efforts to adapt to climate change, particularly in developing countries, and that promotes the fulfilment of international agreements in the field of mitigation; (m) The promotion of equitable access to benefits from the inter­ national distribution of wealth through enhanced international cooperation, in particular in international economic, commercial and financial relations; (n) The enjoyment by everyone of ownership of the common heritage of mankind in connection to the public right of access to culture; (o) The shared responsibility of the nations of the world for managing  worldwide economic and social development, as well as threats to  international peace and security, which should be exercised mul­ tilaterally; 6. Stresses the importance of preserving the rich and diverse nature of the international community of nations and peoples, as well as respect for national and regional particularities and various historical, cultural and

132

CHAPTER A

religious backgrounds, in the enhancement of international cooperation in the field of human rights; 7. Also stresses that all human rights are universal, indivisible, interdependent and interrelated and that the international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis, and reaffirms that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms for all; 8. Urges all actors on the international scene to build an international order based on inclusion, social justice, equality and equity, human dignity, mutual understanding and promotion of and respect for cultural diversity and universal human rights and to reject all doctrines of exclusion based on racism, racial discrimination, xenophobia and related intolerance; 9. Reaffirms that all States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries; 10. Also reaffirms the need to continue working urgently for the establishment of an international economic order based on equity, sovereign equality, interdependence, common interest and cooperation among all States, irrespective of their economic and social systems, which shall correct inequalities and redress existing injustices, make it possible to eliminate the widening gap between the developed and the developing countries and ensure steadily accelerating economic and social development and peace and justice for present and future generations; 11. Further reaffirms that the international community should devise ways and means to remove the current obstacles and meet the challenges to the full realization of all human rights and to prevent the continuation of human rights violations resulting therefrom throughout the world; […]

chapter B

unesco Introduction The United Nations Educational, Scientific and Cultural Organization (unesco) is a specialized agency of the United Nations that was founded in 1945. Today the organization has 195 Members and nine Associate Members and is known as the “intellectual” agency of the United Nations. According to Art. I, para. 1 of the unesco Constitution it is “[t]he purpose of the Organization […] to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.” Based on this overall mission, promoting democracy through education has been one  of the areas of activity of the organization. Three documents which were  elaborated in the context of unesco have been reproduced in this collection. The first document is the “Declaration of Montevideo on Democratic Culture and Governance” (→ Doc. 15), which was adopted at a Conference entitled “Democratic Culture and Development: towards the Third Millennium in Latin America” which took place from 27 to 30 November 1990 in Montevideo, Uruguay. The Conference was the first far-reaching international action undertaken by unesco on the subject of democracy. Following this spark, the “World Plan on Education for Human Rights and Democracy” (→ Doc. 16) was adopted at the International Congress on Education for Human Rights and Democracy, which took place in Montreal (Canada) from 8 to 11 March 1993. The Plan of Action must be seen in the context of the crisis in the former Yugoslavia and in other areas of the world where most serious human rights violations highlighted the need for education with regard to human rights and democracy. The third document, finally, is the “Declaration and Integrated Framework of Action on Education for Peace, Human Rights and Democracy” (→ Doc. 17), which was adopted by the International Conference on Education at its 44th session in Geneva (Switzerland) in October 1994. The International Conference on Education is organized by the International Bureau of Education, a formerly independent organization that has been operating as an integral part of

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_004

134

chapter B

unesco since 1969. The General Conference of unesco endorsed the document at its 28th session, in Paris in November 1995. On the democracy documents of the unesco, see Julian Huxley, unesco: Its Purpose and Its Philosophy (Preparatory Commission of the United Nations Educational, Scientific and Cultural Organisation), Paris 1946; Janusz Symonides, unesco’s Contribution to the Progressive Development of Human Rights, in: 5 Max Planck Yearbook of United Nations Law (2001), p. 307–340.

15 Declaration of Montevideo

15

135

Declaration of Montevideo: Democratic Culture and Governance

Adopted by the International Conference on “Democratic Culture and Development: Towards the Third Millennium in Latin America,” Montevideo (Uruguay), 27 to 30 November 1990 Preamble 1. In almost every region of the world, and particularly in Latin America and Europe, the foundations are being laid in public life for the difficult transition to political and economic structures that restore responsibility, initiative and decision-making authority to all social actors. Authoritarian or centralizing forms of organization, which gave a hegemonic State the exclusive right to determine political, social and economic options, are giving way to an increasingly general desire for a new legitimacy based on the popular will and on the recognition of political life as subject to the rule of law. 2. Intellectuals and the Establishment in different countries and regions increasingly tend to view modern democracy not only as the basic expression of popular sovereignty, taking care to ensure the independence of justice, but also as a political practice encompassing pluralism, solidarity an participation in which human rights and civil liberties not only behave as limits to the arbitrary exercise of power, but also constitute the ethical basis of social consensus in a civil society formed of free and equal individuals; in which the State, as guardian of national sovereignty and guarantor of the public weal, becomes the supreme defender of civil and individual rights and freedoms; in which conflicts of interest are peacefully resolved in social contracts supported by the law; and lastly, in which economic activity, concurrently with the democratization of the political process and as a logical manifestation of the same compelling need for change and social progress, develops towards more open forms of initiative and control involving the State, the market and other social actors that enjoy considerable discretion in their decision-making. 3. This more complex and differentiated civil society beckons from the future, challenging the very foundations of our way of life as individuals and communities. In a real pluralist democracy, law, liberty and social justice have to be reconciled. The elimination of social disparities, exclusion and marginality and the furtherance of the development process are major challenges to social imagination and to the solidarity of the different social actors, especially the State. 4. Democracy and sustainable development will depend in large measure on  the ability of individual societies to modernize from within, especially through changes and adjustments that enhance the State’s efficiency and legitimacy in  arbitrating conflicts and administering justice, and in providing

136

chapter B

e­ ncouragement and guidance in the economic and cultural fields. It is in this way that existing disparities can be overcome and a new national consensus around the joint project of a more just and more effectively pluralist civil society be promoted. 5. However, given the far-reaching changes in the forms and structures of power in the world at large, there seems little prospect of devising effective and lasting solutions to the complex web of political and economic problems at the level of individual countries. Social change at world level and corresponding changes in the region make it increasingly essential to build up regional and inter regional co-operation. With ideological polarization vanishing, the challenge of the future consists in translating public and private resolve into supranational co-operation strategies that ensure political and economic transition at minimum social cost. It is certainly in this context of broader cooperation that more effective action can be taken to counter social exclusion and reduce internal disparities while at the same time lessening external economic, scientific and technological dependence through more effective integration of the States of the region into a world system whose political and economic foundations are rapidly evolving. 6. However, changes in the practical exercise of power and the reorganization of systems of production give rise to changes not only in political, social and economic institutions but also in culture and in the behaviour of the individuals and groups moulded by that culture. The other vital dimension of the challenge facing societies in the early stages of democracy is the forging of a democratic culture. A pluralist democratic society cannot work unless it is based on value and knowledge systems that have been spontaneously accepted by a majority of individuals, empowering them to make effective use of political and legal institutions and guiding their behaviour in accordance with criteria about the common good and of justice, equity and social peace. There is therefore an increasing awareness of the need for thoroughgoing cultural and institutional renewal so as to provide a channel for the clashes among the different ideas and forms of social activity that inevitably occur when people are allowed free expression, and to resolve divergences through social achievements representing the creative embodiment of a whole people. Principles and Recommendations 7. Within this general context, the Conference on Democratic Culture and Development in Latin America, held on the initiative of the Government of the Eastern Republic of Uruguay, unesco, and the pax Institute, which has brought together in Montevideo distinguished representatives of the world of

15 Declaration of Montevideo

137

politics and sciences from the region and beyond, on the threshold of the third millennium: A. Unanimously reaffirms the vital importance of democracy for the future of mankind in that it is: (a) the only political system and practice based on the sovereignty of the people, open to the active participation in public life of all sectors of society and all shades of opinion, without any discrimination; (b) the only system and practice for public life capable of bringing about a society based on the rule of law and on the recognition of human rights and of civil and individual freedoms as the ethical basis for a civil society of free and equal individuals, and where the State appears as supreme defender of those rights and freedoms; (c) the only system and practice for public life which is geared to the peaceful and concerted pursuit of social justice, equity and individual and community well-being under the law. B. Therefore recommends that States and relevant international governmental and non-governmental organizations commit themselves to promoting democracy, within the framework of regional and international co-operation, through: (a) the development of comparative research in social and judicial sciences at the regional and interregional levels concerning the nature, functioning and efficiency of the political institutions and machinery and the laws and customs that make for progress towards participatory democracy and towards the democratic governance of development processes, and, in particular, concerning the new functions and forms of organization of the State as defender of rights and promoter of democratic social processes and development; (b) the development of studies on the possibility of establishing or reinforcing, with the objective of political and economic regional integration, jurisdictions at the regional level in the field of human rights; (c) the development of national, regional and interregional education programmes designed, with a view to developing a democratic culture, to enhance the people's awareness of the values of freedom, solidarity, justice, social peace and tolerance and to provide them with the knowledge on political institutions and law they need to exercise democracy in a way that is genuinely guided by the principles of human rights; (d) the development of national and regional cultural policies and structures conducive to the different social actors' participation in national public life in a politically responsible way. […]

138 16

chapter B

World Plan on Education for Human Rights and Democracy

Adopted by the International Congress on Education for Human Rights and Democracy, Montreal (Canada), 8–11 March 1993 The Plan is based on the body of intentional human rights and humanitarian law. Human rights are seen in this Plan as universal and indivisible. Introduction […] What? The Plan of action calls for a global mobilization of energies and resources, from the family to the United Nations, to educate individuals and groups about human rights so that conduct leading to a denial of rights will be changed, all rights will be respected and civil society will be transformed into a peaceful and participatory model. Learning is not an end in itself but rather the means of eliminating violations of human rights and building a culture of peace based on democracy, development, tolerance and mutual respect. […] The Plan conceives of human rights in their broadest sense to include inter alia learning about tolerance and acceptance of others, solidarity, participatory citizenship and the importance of building mutual respect and understanding. Why? The context of the Plan of action must be seen as one of alarm and urgency. Certainly, the Cold War has come to a close, walls have come down and some dictators have been deposed. Yet the last decade of the twentieth century is experiencing the recurrence of the most serious human rights violations, caused by the rise of nationalism, racism, xenophobia, sexism and religious intolerance. These recurrences have led to the most abhorrent forms of ethnic cleansing including the systematic rape of women, exploitation, neglect and abuse of children and concerted violence against foreigners, refugees, displaced persons, minorities, indigenous peoples and other vulnerable groups. Notwithstanding the dissolution of authoritarian regimes and the formation of emerging democracies world-wide over the last years, new forms of autocracy have also emerged. An alarming rise of racism, various forms of extremism and religious fanaticism and the dangerous instability of some post-authoritarian States are noted. No less disturbing for the protection of

16  ACTION PLAN: HUMAN RIGHTS AND DEMOCRACY

139

human rights are the threats stemming from environmental degradation, from new bio-medical technologies and from the scourge of hiv/aids. Education for human rights in a changing world is the thrust of this Plan of action. It should be participatory and operational, creative, innovative and empowering at all levels of civil society. The rise of nationalism and intolerance mentioned above calls for special and anticipatory educational strategies aimed at preventing the outbreak of violent conflicts and the related human rights violations. Incremental changes can no longer be considered satisfactory. Education should aim to nurture democratic values, sustain impulses for democratization and promote societal transformation based upon human rights and democracy. The Plan of action takes into consideration the development of human rights norms and the establishment of mechanisms for the promotion and protection of human rights at national, regional and international levels. A key challenge for the future is to enhance the universality of human rights by rooting these rights in different cultural traditions The effective exercise of human rights is also contingent upon the degree of responsibility be individuals towards the community. […] How? In order for this Plan to succeed, the active participation of individual States is essential, wherever possible. The State should commit itself to defined targets for human rights education and awareness within governmental structures and institutions. The State should provide funding for initiatives which are generated nationally. The commitment of States to human rights education indicates the political will to build a sustainable democratic society. The quality of human rights education is in itself a manifestation of such a will now and for the future. The initiatives of States in this field provide a basis for assessment. In this context, it is important for States to accede to all human rights instruments. […] The following seven major strategies are proposed: 1. Development and distribution by unesco of a standard form for planning, implementation and assessment of the Plan. This will assist governmental and non-governmental organizations in the projection, co-ordination and review of various programmes, projects and activities to achieve the objectives of the World Plan of Action. unesco would keep a register of all initiatives undertaken in this framework communicated by the participants. 2. Development of active national, regional and international networks to produce material, curricula and programmes as well as to exchange methods and materials and develop “best practice” approaches.

140

chapter B

3. Access to up-to-date information and documentation and the availability of practical and inexpensive teaching materials. 4. Convening of regional and global momentum-building conferences. 5. Strengthening of the United Nations Voluntary Fund for Advisory Services and Technical Assistance in the Field of Human Rights and of the unesco Voluntary Fund for the Development of the Knowledge of Human Rights through Education and Information so that they can better support human rights education, information and documentation projects on a worldwide basis, including those of non-governmental organizations, as well as encouraging funding of such projects by other public and private funding institutions and sources. 6. Emphasis to be given to the right to education and in particular human rights education by the United Nations Commission on Human Rights and its monitoring mechanisms, the regional human rights commissions, as well as by the expert organs supervising the international human rights treaties and in particular the Committee on the Rights of the Child. 7. A follow-up committee to be established by unesco, in consultation with the United Nations Centre for Human Rights, will disseminate the Plan, receive relevant communications and follow-up and monitor the implementation of the Plan. The Plan emphasizes that learning is intended to encompass the concepts that knowledge must lead to action, that access to knowledge should be empowering, that learning is a participatory process and that the learner is also the teacher and vice-versa. The methodology of education for human rights and democracy should be respectful of the rights of the learner and democratic in its organization and functioning. This Plan calls for methods which will reach the widest number of individuals most effectively, such as the use of the mass media, the training of trainers, the mobilization of popular movements and the possibility of establishing a world-wide television and radio network under the auspices of the United Nations. Objectives The Plan strives to: 1. make information available about human rights norms and instruments as well as recourse procedures and mechanisms against violations at the national, regional and international levels. Special efforts should be made to ensure that this information reaches young people; 2. assist learners to understand the connections between economic conditions and access to rights and encourage educators to support strategies for change that are non-violent and democratic;

16  ACTION PLAN: HUMAN RIGHTS AND DEMOCRACY

141

3. increase the awareness of educators in all sectors and at all levels of the benefits of co-operation and co-ordination through networking and to assist them in building human rights education networks; 4. encourage governments and the international community to provide and foster a culture of peace based on human rights; 5. to make human rights and the national, regional and international instruments that guarantee such rights more widely known. Main Lines of Action The ultimate purpose of the Plan is to create a culture of human rights and to develop democratic societies that enable individuals and groups to solve their disagreements and conflicts by the use of non-violent methods. The challenge of making education for human rights and democracy effective and comprehensive world-wide will require: […] 4. the process of human rights education and training with the participation of target groups, must be viewed as an exercise in democracy. This can be done by practising the principle of equality and by developing participatory and inclusive learning contexts and curricula in response to the real needs of people. Educational processes and methodologies must be models for what the plan wishes to achieve in society as a whole. It is also imperative that learning programmes include approaches which assist people to understand and analyse their relations with power as well as with leadership styles and abuses; 5. the development of pedagogic research into the various aspects of education for human rights and democracy, taking account especially of present changes; 6. the systematic revision of school textbooks with a view to eliminating xenophobic, racist, sexist and other stereotypes; […] Levels of Action The following levels of action should be emphasized: Teaching human lights and democracy in the curricula at all levels of the school system Aims: To build an integral and broad-based curriculum that is both pervasive across subject disciplines and taught as a separate subject so that human rights and democracy education is dealt with repeatedly throughout a person’s basic education. The theme of rights, responsibilities and democratic processes should also be woven into all or most topics of study and included in the values aimed at in school life and in the process of socialization. […]

142

chapter B

Conclusion

The challenge the World Plan of Action for Education on Human Rights and Democracy will have to meet is that of translating human rights, democracy and concepts of peace, of sustainable development and of international solidarity into social norms and behaviour. This is a challenge for humanity: to build a peaceful, democratic, prosperous and just world. Constant active education and learning is needed to meet such a challenge. It is hoped that this plan of action will be implemented by committed nations, individuals, groups, every organ of society, and the international community at large, to ensure its full success for the benefit of present and future generations. […]

17  EDUCATION FOR PEACE, HUMAN RIGHTS AND DEMOCRACY

143

17 Declaration and Integrated Framework of Action on Education for Peace, Human Rights and Democracy Adopted by the International Conference on Education at its 44th session, Geneva (Switzerland), October 1994, endorsed by the General Conference of unesco at its 28th session, Paris (France), November 1995 1 We, the Ministers of Education Meeting at the 44th Session of the International Conference on Education, Deeply concerned by the manifestations of violence, racism, xenophobia, aggressive nationalism and violations of human rights, by religious intolerance, by the upsurge of terrorism in all its forms and manifestations and by the growing gap separating wealthy countries from poor countries, phenomena which threaten the consolidation of peace and democracy both nationally and internationally and which are all obstacles to development, Mindful of our responsibility for the education of citizens committed to the promotion of peace, human rights and democracy in accordance with the letter and spirit of the Charter of the United Nations, the Constitution of unesco, the Universal Declaration of Human Rights and other relevant instruments such as the Convention on the Rights of the Child and the conventions on the rights of women, and in accordance with the Recommen­ dation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms, Convinced that education policies have to contribute to the development of understanding, solidarity and tolerance among individuals and among ethnic, social, cultural and religious groups and sovereign nations, Convinced that education should promote knowledge, values, attitudes and skills conducive to respect for human rights and to an active commitment to the defence of such rights and to the building of a culture of peace and democracy, Equally Convinced: – of the great responsibility incumbent not only on parents, but on society as a whole, to work together with all those involved in the education system, and with non-governmental organizations, so as to achieve full implementation of the objectives of education for peace, human rights and democracy and to contribute in this way to sustainable development and to a culture of peace; […]

144

chapter B

2 Strive Resolutely: 2.1 to base education on principles and methods that contribute to the development of the personality of pupils, students and adults who are respectful of their fellow human beings and determined to promote peace, human rights and democracy; 2.2 to take suitable steps to establish in educational institutions an atmosphere contributing to the success of education for international understanding, so that they become ideal places for the exercise of tolerance, respect for human rights, the practice of democracy and learning about the diversity and wealth of cultural identities; 2.3 to take action to eliminate all direct and indirect discrimination against girls and women in education systems and to take specific measures to ensure that they achieve their full potential; 2.4 to pay special attention to improving curricula, the content of textbooks, and other educational materials including new technologies, with a view to educating caring and responsible citizens, open to other cultures, able to appreciate the value of freedom, respectful of human dignity and differences, and able to prevent conflicts or resolve them by non-violent means; 2.5 to adopt measures to enhance the role and status of educators in formal and non-formal education and to give priority to pre-service and in-service training as well as the retraining of educational personnel, including planners and managers, oriented notably towards professional ethics, civic and moral education, cultural diversity, national codes and internationally recognized standards of human rights and fundamental freedoms; […] 3 We are Determined to Increase Our Efforts to: 3.1 give a major priority in education to children and young people, who are particularly vulnerable to incitements to intolerance, racism and xenophobia; 3.2 seek the co-operation of all possible partners who would be able to help teachers to link the education process more closely to real social life and transform it into the practice of tolerance and solidarity, respect for human rights, democracy and peace […] 3.4 implement the Declaration and Programme of Action of the World Conference on Human Rights (Vienna, June 1993) and the World Plan of Action on Education for Human Rights and Democracy adopted at the International Congress on Education for Human Rights and Democracy (Montreal, March 1993), and make the internationally recognized instruments in the field of human rights available to all educational establishments; […]

17  EDUCATION FOR PEACE, HUMAN RIGHTS AND DEMOCRACY

145

i Introduction 1. This Integrated Framework of Action on Education for Peace, Human Rights and Democracy is intended to give effect to the Declaration adopted at the 44th session of the International Conference on Education. It suggests basic guidelines which could be translated into strategies, policies and plans of action at the institutional and national levels according to the conditions of different communities. 2. In a period of transition and accelerated change marked by the expression of intolerance, manifestations of racial and ethnic hatred, the upsurge of terrorism in all its forms and manifestations, discrimination, war and violence towards those regarded as “other” and the growing disparities between rich and poor, at international and national levels alike, action strategies must aim both at ensuring fundamental freedoms, peace, human rights, and democracy and at promoting sustainable and equitable economic and social development all of which have an essential part to play in building a culture of peace. This calls for a transformation of the traditional styles of educational action. 3. The international community has recently expressed its firm resolve to provide itself with instruments adapted to the current challenges in the world in order to act in a concerted and effective way. The Vienna Declaration and Programme of Action for Human Rights adopted by the World Conference on Human Rights (Vienna, June 1993), the World Plan of Action on Education for Human Rights and Democracy adopted by the International Congress on Education for Human Rights and Democracy (Montreal, March 1993), and the Associated Schools Project Strategy and Plan of Action 1994–2000 are, in this respect, attempts to respond to the challenge of promoting peace, human rights, democracy and development. 4. Taking inspiration from the Recommendation on Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms, this Framework of Action seeks to suggest to Member States and international governmental and non-governmental organizations an up-to-date and integrated view of problems and strategies concerning education for peace, human rights and democracy. It was drawn up at the request of the General Conference at its twenty-seventh session, taking into account existing action plans, and its purpose is to enhance their practical relevance and effectiveness. The idea then is to draw on accumulated experience in order to chart new directions for the education of citizens in every country. The Framework of Action accordingly identifies principles and objectives of action and formulates proposals for the consideration of policy-makers within each State and for co-operation between countries on the basis of the commitments contained in the Declaration, to which it is closely linked. It also attempts to bring together into a coherent whole the various measures aimed

146

chapter B

at defining study topics, realigning education at all levels, rethinking methods and reviewing teaching materials in use, stimulating research, developing teacher training and helping to make the education system more open to society by means of active partnership. 5. All human rights are universal, indivisible, interdependent and interrelated. The strategies of action for their implementation must take specific historic, religious and cultural considerations into account. ii Aims of Education for Peace, Human Rights and Democracy 6. The ultimate goal of education for peace, human rights and democracy is the development in every individual of a sense of universal values and types of behaviour on which a culture of peace is predicated. It is possible to identify even in different socio-cultural contexts values that are likely to be universally recognized. 7. Education must develop the ability to value freedom and the skills to meet its challenges. This means preparing citizens to cope with difficult and uncertain situations and fitting them for personal autonomy and responsibility. Awareness of personal responsibility must be linked to recognition of the value of civic commitment, of joining together with others to solve problems and to work for a just, peaceful and democratic community. 8. Education must develop the ability to recognize and accept the values which exist in the diversity of individuals, genders, peoples and cultures and develop the ability to communicate, share and co-operate with others. The citizens of a pluralist society and multicultural world should be able to accept that their interpretation of situations and problems is rooted in their personal lives, in the history of their society and in their cultural traditions; that, consequently, no individual or group holds the only answer to problems; and that for each problem there may be more than one solution. Therefore, people should understand and respect each other and negotiate on an equal footing, with a view to seeking common ground. Thus education must reinforce personal identity and should encourage the convergence of ideas and solutions which strengthen peace, friendship and solidarity between individuals and people. 9. Education must develop the ability of non-violent conflict-resolution. It should therefore promote also the development of inner peace in the minds of students so that they can establish more firmly the qualities of tolerance, compassion, sharing and caring. 10. Education must cultivate in citizens the ability to make informed choices, basing their judgements and actions not only on the analysis of present situations but also on the vision of a preferred future.

17  EDUCATION FOR PEACE, HUMAN RIGHTS AND DEMOCRACY

147

11. Education must teach citizens to respect the cultural heritage, protect the environment, and adopt methods of production and patterns of consumption which lead to sustainable development. Harmony between individual and collective values and between immediate basic needs and long-term interests is also necessary. 12. Education should cultivate feelings of solidarity and equity at the national and international levels in the perspective of a balanced and long-term development. iii Strategies 13. In order to achieve these aims, the strategies and forms of action of education systems will clearly need to be modified, as necessary, in respect both of teaching and of administration. Furthermore, providing basic education for all, and promoting the rights of women as an integral and indivisible part of universal human rights, are fundamental in education for peace, human rights and democracy. 14. Strategies relating to education for peace, human rights and democracy must: (a) be comprehensive and holistic, which means addressing a very broad range of factors some of which are described in more detail below; (b) be applicable to all types, levels and forms of education; (c) involve all educational partners and various agents of socialization, including ngos and community organizations; (d) be implemented locally, nationally, regionally and worldwide; (e) entail modes of management and administration, co-ordination and assessment that give greater autonomy to educational establishments so that they can work out specific forms of action and linkage with the local community, encourage the development of innovations and foster active and democratic participation by all those concerned in the life of the establishment; (f) be suited to the age and psychology of the target group and taken account of the evolution of the learning capacity of each individual; (g) be applied on a continuous and consistent basis. Results and obstacles have to be assessed, in order to ensure that strategies can be continuously adapted to changing circumstances; (h) include proper resources for the above aims, for education as a whole and especially for marginalized and disadvantaged groups. […]

chapter C

Community of Democracies Introduction The Community of Democracies (cd) was founded in 2000 on the basis of a joint initiative by former U.S. Secretary of State, Madeleine Albright, and former Polish Minister of Foreign Affairs, Bronislaw Geremek. It is not based on a formal treaty under international law but serves as an international platform for governments and members of the civil society as well as the private sector in order to promote democracy. The first document reprinted in this section, the  Warsaw Declaration entitled “Toward a Community of Democracies” (→ Doc. 18) is the founding document of the organization and was adopted at the end of the founding conference on 27 June 2000 by the 106 participating states. Since 2007 the Community of Democracies possesses a Permanent Secretariat, located in Warsaw, Poland. Until 2011, a Convening Group, composed primarily of governments that initiated the Warsaw Conference, governed the process. After 2011 this task was transferred to a newly created Governing Council. At the same time, separate fora for parliamentarians, young leaders, members of the civil society and corporations were established. The organization operates on the basis of Ministerial Declarations (→ Docs. 20–23), which are adopted by consensus. Furthermore, the separate fora adopt their own final documents including recommendations to the participants. Finally, the “Criteria for Participation and Procedures” are included (→ Doc. 19) in order to give an idea of the understanding of democracy as applied in the context of the Community of Democracies.

On the democracy documents of the Community of Democracies, see Theodore J. Piccone, Democracies: In a League of their Own? Lessons Learned from the Community of Democracies, in: Foreign Policy Papers 8 (2008); James M. Lindsay/ Stephen Schlesinger/Kishore Mahbubani/Ruth Wedgwood/John J. Davenport, Roundtable: Can Democracies Go It Alone?, in: Ethics & International Affairs Journal 23 (2009), p. 3–37.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_005

18 Warsaw Declaration

18

Warsaw Declaration



Toward a Community of Democracies

149

Adopted by the Ministerial Conference, Warsaw (Poland), 27 June 2000 We, the participants from […] in the Community of Democracies Ministerial Meeting convened in Warsaw, 26–27 June 2000: Expressing our common adherence to the purposes and principles set forth in the Charter of the United Nations and the Universal Declaration of Human Rights, Reaffirming our commitment to respect relevant instruments of international law, Emphasizing the interdependence between peace, development, human rights and democracy, Recognizing the universality of democratic values, Hereby agree to respect and uphold the following core democratic principles and practices: – The will of the people shall be the basis of the authority of government, as expressed by exercise of the right and civic duties of citizens to choose their representatives through regular, free and fair elections with universal and  equal suffrage, open to multiple parties, conducted by secret ballot, monitored by independent electoral authorities, and free of fraud and intimidation. – The right of every person to equal access to public service and to take part in the conduct of public affairs, directly or through freely chosen representatives. – The right of every person to equal protection of the law, without any discrimination as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. – The right of every person to freedom of opinion and of expression, including to exchange and receive ideas and information through any media, regardless of frontiers. – The right of every person to freedom of thought, conscience and religion. – The right of every person to equal access to education. – The right of the press to collect, report and disseminate information, news and opinions, subject only to restrictions necessary in a democratic society and prescribed by law, while bearing in mind evolving international practices in this field.

150

chapter C

– The right of every person to respect for private family life, home, correspondence, including electronic communications, free of arbitrary or unlawful interference. – The right of every person to freedom of peaceful assembly and association, including to establish or join their own political parties, civic groups, trade unions or other organizations with the necessary legal guarantees to allow them to operate freely on a basis of equal treatment before the law. – The right of persons belonging to minorities or disadvantaged groups to equal protection of the law, and the freedom to enjoy their own culture, to profess and practice their own religion, and use their own language. – The right of every person to be free from arbitrary arrest or detention; to be free from torture and other cruel, inhumane or degrading treatment or punishment; and to receive due process of law, including to be presumed innocent until proven guilty in a court of law. – That the aforementioned rights, which are essential to full and effective ­participation in a democratic society, be enforced by a competent, independent and impartial judiciary open to the public, established and protected by law. – That elected leaders uphold the law and function strictly in accordance with the constitution of the country concerned and procedures established by law. – The right of those duly elected to form a government, assume office and fulfill the term of office as legally established. – The obligation of an elected government to refrain from extra-constitutional actions, to allow the holding of periodic elections and to respect their results, and to relinquish power when its legal mandate ends. – That government institutions be transparent, participatory and fully accountable to the citizenry of the country and take steps to combat corruption, which corrodes democracy. – That the legislature be duly elected and transparent and accountable to the people. – That civilian, democratic control over the military be established and preserved. – That all human rights – civil, cultural, economic, political and social – be promoted and protected as set forth in the Universal Declaration of Human Rights and other relevant human rights instruments. The Community of Democracies affirms our determination to work together to promote and strengthen democracy, recognizing that we are at differing stages

18 Warsaw Declaration

151

in our democratic development. We will cooperate to consolidate and strengthen democratic institutions, with due respect for sovereignty and the principle of non-interference in internal affairs. Our goal is to support adherence to common democratic values and standards, as outlined above. To that end, our governments hereby agree to abide by these principles in practice, and to support one another in meeting these objectives which we set for ourselves today. We will seek to strengthen institutions and processes of democracy. We appreciate the value of exchanging experiences in the consolidation of democracy and identifying best practices. We will promote discussions and, where appropriate, create forums on subjects relevant to democratic governance for the purpose of continuing and deepening our dialogue on democratization. We would focus our deliberations on our common principles and values rather than extraneous bilateral issues between members. We resolve jointly to cooperate to discourage and resist the threat to democracy posed by the overthrow of constitutionally elected governments. We resolve to strengthen cooperation to face the transnational challenges to democracy, such as state-sponsored, cross-border and other forms of terrorism; organized crime; corruption; drug trafficking; illegal arms trafficking; trafficking in human beings and money laundering, and to do so in accordance with respect for human rights of all persons and for the norms of international law. We will encourage political leaders to uphold the values of tolerance and compromise that underpin effective democratic systems, and to promote respect for pluralism so as to enable societies to retain their multi-cultural character, and at the same time maintain stability and social cohesion. We reject ethnic and religious hatred, violence and other forms of extremism. We will also promote civil society, including women’s organizations, nongovernmental organizations, labor and business associations, and independent media in their exercise of their democratic rights. Informed participation by all elements of society, men and women, in a country’s economic and political life, including by persons belonging to minority groups, is fundamental to a vibrant and durable democracy. We will help to promote government-to-government and people-to-people linkages and promote civic education and literacy, including education for democracy. In these ways we will strengthen democratic institutions and practices and support the diffusion of democratic norms and values. We will work with relevant institutions and international organizations, civil society and governments to coordinate support for new and emerging democratic societies. We recognize the importance our citizens place on the improvement of living conditions. We also recognize the mutually-reinforcing benefits the

152

chapter C

democratic process offers to achieving sustained economic growth. To that end, we will seek to assist each other in economic and social development, including eradication of poverty, as an essential contributing factor to the promotion and preservation of democratic development. We will collaborate on democracy-related issues in existing international and regional institutions, forming coalitions and caucuses to support resolutions and other international activities aimed at the promotion of democratic governance. This will help to create an external environment conducive to democratic development.

19 Criteria for Participation and Procedures

19

153

Criteria for Participation and Procedures

Adopted by the Foreign Ministers of the Community of Democracies Convening Group, 12 September 2000 At their meeting of September 12, 2000, the Foreign Ministers of the Community of Democracies Convening Group agreed to direct senior officials to prepare proposals that would allow for the establishment of basic criteria for participation in the Community and establish procedures to govern its activities as well as those of the Convening Group. The Final Warsaw Declaration provides a reasonable approach to the definition of criteria for participation, which should reflect a clear linkage between participation and the observance of internationally accepted fundamental democratic principles, values and standards in the countries concerned. The criteria should also reflect a balance between the Community of Democracies aim to promote and strengthen democracy and the acknowledgement that its current participants are at differing stages in their democratic development. i Participation Criteria The Final Warsaw Declarations draws on major principles of international law and international standards codified namely in the un Charter, the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights. The Warsaw Declaration recognised the interdependence between peace, development, human rights and democracy, as well as the universality of ­democratic values. The Community of Democracies should be a privileged forum for the defense and promotion of this comprehensive concept of democracy. In this sense, States willing to participate in the Community of Democracies should respect democratic standards as follows: – Free, fair and periodic elections, by universal and equal suffrage, conducted by secret ballot – Multipartidarism, the freedom to form democratic political parties that can participate in elections – Guaranteeing that everyone can exercise his or her right to take part in the government of his or her country, directly or through freely chosen representatives – The rule of Law

154

chapter C

– The obligation of an elected government to protect and defend the constitution, refraining from extra-constitutional actions and to relinquish power when its legal mandate ends – Ensuring equality before the law and equal protection under the law, including equal access to the law – Separation of powers, separation of the judiciary, legislative and executive independence of the judiciary from the political or any other power – Ensuring that the military remains accountable to democratically elected civilian – government – The respect of human rights, fundamental freedoms and the inherent dignity of the human being, notably – Freedom of thought, conscience, religion, belief, peaceful assembly and association, freedom of speech, of opinion and of expression, including to exchange and receive ideas and information through any media, regardless of frontiers: free, independent and pluralistic media – The right of every person to be free from arbitrary arrest or detention from torture or any other cruel, inhuman or degrading treatment or punishment – The right to a fair trial, including to be presumed innocent until proven guilty and to be sentenced proportionally to the crime, free from cruel, inhuman or degrading punishment – The right to full and non-discriminatory participation, regardless of gender, race, colour, language, religion or belief, in the political, economical and ­cultural life – The promotion of gender equality – The rights of children, elderly and persons with disabilities – The rights of national, ethnic, religious or linguistic minorities, including the right to freely express, preserve and develop their identity – The right of individuals to shape their own destiny free from any illegitimate constraint Governments are to defend and to protect all of these rights and to provide the appropriate legislation for this purpose. The observance of international law as well as of internationally accepted democratic principles and values. Respect for universally accepted labour standards. ii Criteria for Conference Participation The Convening Group (cg) will draft the list of participants and observers, not  based on participation in the Warsaw meeting but rather on a state’s

19 Criteria for Participation and Procedures

155

a­ dherence to main requisites. In subsequent years the cg will review each ­participant’s, observer’s, and non-participant’s compliance with requisites to determine participation. If any state fails to comply, for a reasonable period of time, with one or several of these main requisites, it will not be invited to participate in any events of the Community of Democracies, for a limited time and as long as deemed necessary. Alternatively, a state may be invited as an observer for as long as is determined appropriate. The fact that countries find themselves at different stages in their democratic development is to be considered. Nevertheless situations that raise a question regarding their commitment to democratic values will be evaluated by the cg. Different stages must not mean different criteria. iii Other Factors Likely to Promote Democracy, Security and Development Democracy means freedom, freedom to choose and substitute political leaders and parties in power. However, democracy must also mean freedom to choose what one can do with ones resources. Therefore, free initiative should be another component of democracy. Modern and competitive economies play an important role in giving real substance to democracies. Education and access to information are fundamental in building and consolidating a democratic society. Education is both a human right in itself and an indispensable means of realising other human rights. Education is a tool for empowering every human being to actively participate in the decisions, and it is a fundamental vehicle for combating poverty and for resisting discrimination in all its forms. Education makes it difficult for dictators, whose weapon is ignorance. Governments should by all means avoid violence in the political speech. This sort of aggression leads to a climate of intimidation that prevents people from exercising in its entirety their political and civil rights. Democratic societies must be free from fear. iv Procedures Decisions concerning participation or matters related to the Convening Group or the Community of Democracies (cd) should be taken by the consensus of the cg. cd meetings will be held every two years by agreed rotation within cg countries. Countries hosting cd meetings will chair the cg starting with the calendar year following the previous meeting. Senior officials of the cg will meet periodically in the interim in order to guide follow-up activities and preparation for upcoming cd meetings.

156

chapter C

cg Ambassador and Sherpa level meetings will be called by the cg Chair as necessary. Countries can either request to be cd participants or observers, or they may be invited by the cg. A Quatro constituted by one representative from each continent, including past, present and future cd conference hosts, will facilitate conference planning. In keeping with this responsibility, the Quatro will apply criteria articulated in this paper to determine which countries should be invited to participate in, and which countries should be invited to observe, cd Conferences. Quatro recommendations will be endorsed by the cg. – Invitations to participate will be issued to genuine democracies and those countries undergoing democratic consolidation, in accordance with the established criteria. – Invitations to observe will be issued to countries that fail to meet international standards of democracy and human rights, but are in a transition process and have given concrete steps along the lines of the Criteria above. – Observers are encouraged to participate in the roundtables. Observers may adhere to final documents and resolutions once adopted. – Invitation can be issued to international or regional organizations when it is deemed appropriate. Sharing of information among participants of the cg and other participants of the cd is to be assured.

20 Seoul Plan of Action

20

Seoul Plan of Action



Democracy: Investing for Peace and Prosperity

157

Adopted by the Second Ministerial Conference, Seoul (South Korea), 10–12 November 2002 We, the Participants in the Second Ministerial Conference of the Community of Democracies held in Seoul on 10–12 November 2002, affirm that the essential elements of representative democracy in all its forms are: respect for human rights – civil, political, economic, social and cultural – including freedom of expression, freedom of the press, and freedom of religion and conscience; access to and free exercise of power in accordance with the rule of law; the holding of periodic free and fair elections based on secret balloting and universal suffrage monitored by independent election authorities; freedom of association including the right to form independent political parties; separation of powers, especially an independent judiciary; and constitutional subordination of all state institutions, including the military, to the legally-constituted civilian authority. We also reaffirm the Warsaw Declaration which includes our common commitment to the purposes and principles of the un Charter, the Universal Declaration of Human Rights, and fundamental principles of international law. Recognizing the universality of these democratic values, the dedication of the Community of Democracies to promote and defend democracy, and the human rights and fundamental freedoms protected under democracy, we are committed to the continuous development of democracy domestically and the promotion of democracy regionally and globally. We, working as individual countries, within our regions and globally, adopt this Seoul Plan of Action with a view to accomplishing the following: 1 Regional Action Recognizing that democratic countries are stronger economic, security, and political partners, and that the promotion of democratic ideals strengthens regional stability and cooperation, we intend to promote regional democratic progress, individually, through regional institutions, and through various measures including: 1-1. In each respective region, developing and fully implementing regional instruments which call upon regional partners to build democratic institutions, adhere to democratic principles, and provide assistance in this field to states which are in need of assistance using proper regional instruments;

158

chapter C

1-2. Developing regional human rights and democracy monitoring mechanisms in order to consolidate regional potentialities to ­promote and protect human rights and democratic principles as well as to promote dialogue between countries on those issues and to remedy their violations; 1-3. Improving diplomatic engagement and dialogue with countries where respect for human rights, fundamental freedoms, and universallyaccepted principles of democracy are in question, in order to highlight international concerns and promote democratic change; 1-4. Fighting corruption and upholding government integrity and good governance. […] 2 Responding to Threats to Democracy Recognizing the need to protect against threats to democracy including terrorism, the Community of Democracies may outline a series of measures that could be used with full respect for international law by countries individually, together or as members of international or regional organizations to promote, defend, strengthen or restore democratic institutions. To prevent or respond to scenarios of violence against a democratic government, disruption of constitutional rule, persistent unconstitutional alteration of the democratic order, or support for terrorism, countries may need to resort, preferably within the framework of regional or international organizations, to a range of measures, including but not limited to: 2-1. In the particular case of terrorism, suspending bilateral relations, commerce with or aid to those states supporting terrorism and aid, support or linkages to non-state organizations supporting terrorism and, as appropriate, upon determination by the un Security Council; 2-2. Adopting and complying with all their obligations in the 12 un ­Conventions against Terrorism, and the mechanism adopted by the un Security Council Committee established pursuant to Res. 1373 (2001), concerning counter-terrorism (the Counter-Terrorism ­Committee); 2-3. Creating a cadre of trained experts able to assist countries facing a threat to their democracy; 2-4. Developing monitoring systems for democratic crises so that early assistance can be provided to support democracy; 2-5. Considering convening countries when needed to coordinate diplomatic or other efforts or political mediation; 2-6. Providing recommendations based on an on-site analysis in order to uphold democratic principles and human rights;

20 Seoul Plan of Action

159

2-7. Supporting actions through rapid consideration mechanisms by regional and international organizations; 2-8. Enhancing existing regional and international instruments and democracy clauses, e.g. by strengthening positive economic incentives, and by preventing not only ruptures in but also the deterioration of democracy; 2-9. Offering good offices to assist, as needed, governments, other political actors, civil society, and public institutions to produce an accord committing to prescribed remedial measures; 2-10. Providing long-term technical support or monitors to strengthen democratic institutions, election process and reform efforts; In accordance with the principles articulated in the Warsaw Declaration, the Community of Democracies, through as wide consultations as possible with its participants, will not include those countries where there is currently a disruption of constitutional rule or severe persistent erosion of or lack of essential elements of democracy. 3 Education for Democracy Recognizing that education at all levels is a fundamental component for ensuring citizens are aware of their rights and civic duties as members of a democratic society, equipped with the basic skills for effective participation in public affairs, and that an educated citizenry is essential to the development, maintenance, and strengthening of democratic institutions and growth, we intend to encourage States and all relevant levels of government in our respective countries to promote a culture of democracy through education for democracy […].

160

chapter C

21

Santiago Ministerial Commitment



Cooperating for Democracy

Adopted by the Third Ministerial Conference, Santiago (Chile), 28–30 April 2005 We, the Participants in the Third Ministerial Conference of the Community of Democracies held in Santiago on April 28–30, 2005 approve: Reaffirming the vital importance of the observance of the provisions of the Charter of the United Nations, the International Bill of Human Rights, as well as the fundamental principles of international law. Recommitting to act in accordance with universally recognized standards of human rights with the purpose of strengthening dialogue and cooperation between states, peoples and individuals. Reaffirming further our commitment to the “Warsaw Declaration: Toward a Community of Democracies,” approved at the First Ministerial Conference on June 27, 2000 in Warsaw, and to the implementation of the “Seoul Plan of Action: Investing for Peace and Prosperity,” and the “Community of Democracies Statement on Terrorism,” adopted at the Second Ministerial Conference, held in Seoul on November 16, 2002, declare that: We renew our conviction that democracy, sustainable development, peace, and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social, and cultural systems and their full participation in all aspects of their lives. We reaffirm that education in human rights and democracy is essential for participation in the democratic process and governance. We recognize, in line with the Seoul Plan of Action, that respect for human rights – civil, political, economic, social and cultural – including freedom of expression, freedom of the press and freedom of religion and conscience; access to and free exercise of power in accordance with the rule of law; the holding of periodic free and fair elections based on secret balloting and universal suffrage monitored by independent election authorities; freedom of association, including the right to form independent political parties; separation of powers, especially an independent judiciary; and constitutional subordination of all state institutions, including the military, to the legally-constituted civilian authority, are essential elements of democracy. We are also convinced that democracy cannot be sustained without strict adherence to the principle of non-discrimination, including protection for persons belonging to national or ethnic, religious and linguistic minorities and

21 Santiago Commitment

161

indigenous peoples, and persistent efforts to eliminate extreme poverty, underdevelopment, marginalization, economic disparities, and social exclusion. We reaffirm our commitment to uphold the values of tolerance and compromise that underpin effective democratic systems and to promote respect for pluralism, so as to enable societies to retain their multicultural characters. We firmly reject ethnic and religious hatred, violence, and other forms of extremism. We take note of the significant expansion in the number of democracies over the last half century and welcome the progress made thus far towards achieving goals and objectives contained in the Warsaw Declaration and the Seoul Plan of Action. We believe that increasing the number of democratic nations and supporting the development and strengthening of emerging democracies helps to build a safer world in which individuals, women and men equally, can live freely and in an environment of peace, stability, and well-being characterized by respect for the rule of law. To that end, we reiterate our commitment to supporting processes of transition to democracy, to the strengthening of institutions and democratic processes, at the national, regional and international levels, and to working in partnership with those promoting democracy, including civil society. The democratization of the multilateral system, particularly the United Nations (un), is the necessary counterpart to democratic practice with nations. Every nation that practices democracy must strive to ensure that in international affairs decision-making is equally open, transparent legitimate and equitably representative. In the Millennium Declaration, all members States of the un have pledged to strengthen their capacity to implement the principles and practices of democracy. In this context, we emphasize that the un plays a central role in achieving such objectives and we pledge to support the further expansion and strengthening of its activities to broaden and reinforce democratic trends throughout the world. Given that democratic governance is a key element for  development, security and human rights, our governments will actively engage in the discussion of un reform initiated by the Secretary-General´s recent report “In larger freedom: towards development, security and human rights for all.” Truthful to the guiding tenets expressed in the Warsaw Declaration and with the aim of continuing implementing the Seoul Plan of Action, we ­therefore adopt this Commitment, which represents the agenda for the activities of the Community of Democracies based upon reflections on the situation of democracy worldwide at the dawn of the 21st Century, reiterating our firm will to promote and strengthen democracy domestically, regionally and ­globally, in particular through appropriate international organizations and institutions.

162

chapter C

i Democratic Governance and Civil Society We are committed to enhancing the participation of a dynamic civil society at the domestic and international level, and we encourage non-governmental organizations who are actively promoting activities to strengthen and support  democracies and respect for human rights worldwide. To that end we will, 1. Promote and protect human rights and fundamental freedoms to foster the empowerment of a vital civil society and the elimination of all forms of discrimination and intolerance. 2. Encourage a culture of tolerance, actively promoting dialogue and mutual respect, by developing educational and other programs aimed at the prevention of the violation of human rights, war crimes and crimes against humanity. 3. Cooperate and build partnerships with civil society in pursuit of the rule of law, human rights, democratic governance and institution building. Promote regular dialogue between governmental and civil society actors, to exchange ideas on strengthening domestic democratic development, effectively fighting corruption, promoting and protecting human rights, upholding the government’s integrity and good governance, fighting poverty, promoting transparency and access to information via free media, promoting development and dialogue at the international level to support democracy in regional and international fora. 4. Promote an environment for the strengthening, democratization, innovation and modernization of political parties and other political organizations, in order to achieve a democracy in which citizens are full participants. Special attention will be paid to the implementation of free and fair elections, including the transparent and impartial administration of elections, and establishing a transparent system for their financing. 5. Encourage the full participation of women on the basis of equality in all spheres of society, including participation in the decision-making process and access to power, as a fundamental element in the promotion and exercise of a democratic culture. 6. Affirm that democracy demands an active participation of young people. We express our commitment to promote among youth a set of democratic values and we urge all countries to implement strategies, policies, programs and concrete measures designed to foster education for democracy and encourage the contribution of youth in all areas of society. 7. Acknowledge that the promotion and strengthening of democratic governance is a shared responsibility of all public authorities, civil society and political parties.

21 Santiago Commitment

163

8. Welcome the work of the Non-Governmental Process of the Community of Democracies as a significant contribution to the government and civil society dialogue and we encourage its participants to support the implementation of this Ministerial Commitment and participate in future Ministerial Meetings of the Community of Democracies as appropriate. ii Poverty, Development and Democratic Governance We recognize the importance our citizens place on the improvement of living conditions. We also recognize the mutually reinforcing benefits that democratic process offers to achieve sustained economic growth and poverty eradication. We recognize the importance of the progressive realization, in all countries, of the economic, social, and cultural rights as constituting a solid basis for the economic and political empowerment, including the progressive improvement of the quality of life of all individuals. We reaffirm the principles outlined in the Monterrey Consensus: good governance at both national and international levels is essential for sustainable development. Sound economic policies, solid democratic institutions responsive to the needs of the people, and improved infrastructure are the basis for sustained economic growth, poverty eradication, and employment creation. Freedom, peace and security, domestic stability, respect for human rights, including the right to development, and the rule of law, gender equality, market oriented policies, and an overall commitment to just and democratic societies are also essential and mutually reinforcing. In this sense, we identify as a main mission of the Community of Democracies the strengthening of democratic governance as an essential component of our efforts to alleviate poverty and support economic growth and sustainable human development and our common pursuit of growth, poverty eradication, inequality reduction and sustainable development, and achieving the internationally-agreed goals, including those contained in the Millennium Summit Declaration. To that end we will: 1. While emphasizing the primary responsibility that each country has for its own economic and social development, and the role of national policies and development strategies, underline the importance of a democratic, transparent, and enabling international economic environment. 2. Seek to assist each other in economic and social development, including eradication of poverty, as an essential contributing factor to the promotion and preservation of democratic development.

164

chapter C

3. Work with international and regional development organizations and one another to improve the design and implementation of poverty reduction strategies which support democratic institution building. Countries that promote the rule of law, including respect for human rights and good governance, seek to eliminate corruption and invest in their people are in a position to better utilize development assistance and promote aid effectiveness. 4. Support concrete actions at the national, regional and international level on Financing for Development, in fulfillment of the commitments of the Monterrey Consensus and recall the commitments made to increase the level and effectiveness of official development assistance and encourage further progress towards the target of 0.7 per cent of gross national product. 5. Encourage efforts to enhance political support to chart a practical path for development financing and the promotion of development. We note with great interest the “Initiative Against Hunger and Poverty” and other related initiatives, as innovative programs to bridge the gap between political undertaking and development financing. 6. Foster the creation of jobs to confront poverty and strengthen democratic governance and promote the exercise of workers’ rights in the frame of the International Labour Organisation (ilo) Declaration on Fundamental Principles and Rights at work and the protection of the rights of workers overseas. 7. Encourage men and women to develop their full potential to create an educated public who can participate in the national decision-making process by strengthening education, health services and other basic needs, by promoting the progressive realization of the right to education and the right to the highest attainable standard of physical and mental health and strengthening other basic needs. 8. Jointly work for a successful conclusion of the Doha Development Round, which is vital to economic development, empowerment and reduction in poverty. 9. Seek cooperation schemes which tend to achieve not only respect for civil and political rights, but also economic, social and cultural rights, so as to attain societies wherein all persons are able to fully exercise their rights. 10. Support the elaboration of an expanded and comprehensive response to the hiv-aids pandemic, which places an enormous drag on economic growth, weakens governance and security structures, and cooperate on seeking adequate resources to reverse the spread of hiv-aids. […]

22 Bamako Consensus

22

Bamako Ministerial Consensus



Democracy, Development and Poverty Reduction

165

Adopted by the Fourth Ministerial Conference, Bamako (Mali), 14–17 November 2007 1. We the participants in the Fourth Ministerial Conference of the Community of Democracies held in Bamako on 14–17 November 2007: 2. Declare our commitment to build on our shared principles and goals to promote democracy in all regions of the world, to support the integrity of democratic processes in societies on the democratic path and to coordinate policies to enhance the effectiveness of democratic governance. 3. We reaffirm the solemn commitment of our States to fulfill their obligations to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the United Nations Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law. We further affirm our commitment to respect and uphold the specific principles and provisions agreed to in previous Community of Democracies Ministerial Conferences in Santiago 2005, Seoul 2002, and Warsaw 2000 and to implement the actions thereof. 4. We strive to fulfill the mission of the Community of Democracies identified in the Santiago Commitment to strengthen democratic governance as an essential means to reduce poverty and support equitable and sustainable development. 5. We reaffirm the United Nations Millennium Declaration, in which every Member State of the United Nations committed to strengthen its capacity to implement the principles and practices of democracy, and to achieve all internationally agreed development goals, including the Millennium Development Goals (mdgs), and reduce poverty by half before 2015. We reaffirm our commitment to the Johannesburg Plan of Implementation of the 2002 World Summit on Sustainable Development and our commitment  to the Monterrey Consensus which recognize, inter alia, that good ­governance at national and international levels is essential for sustainable development. 6. We emphasize that democracy, development and human rights are mutually reinforcing. We commit to supporting the integration of development and democratization in our own countries, and we seek to assist potential participant countries in our Community in their efforts to promote democracy and development.

166

chapter C

Democracy, Development and Poverty Reduction 7. We assert that unlike undemocratic forms of government, democracies have embedded institutional advantages incontestably favorable to sustainable development. Democracies, based on respect for human rights, provide political incentives for governments to respond to the needs and demands of the people, allow for more informed and extensive policy dialogue, are more adaptable, and create necessary checks and balances on government power. 8. We recognize the advantage that democracy has over undemocratic forms of government in preventing and managing conflict as well as in responding to disasters such as famine and other events that threaten the well-being of our people. 9. We acknowledge however that some populations in developing and developed countries do not experience the democracy dividend in terms of an improvement in the quality of living. We further acknowledge that persistent inequality and poverty can lead to low public trust in political institutions and vulnerability to undemocratic practices both of which are threats to democracy. 10. We underscore that the links between democracy, human rights and ­equitable and sustainable development need to be strengthened. Social injustices including systemic discrimination against women, the poor, indigenous peoples, persons belonging to racial and ethnic minorities, persons with disabilities, the elderly, youth, all migrants, and other vulnerable groups, exist in well established democracies as well as in new democracies. 11. We recognize that in a democratic society, individuals and groups should have the means to express themselves and to participate in decision making that affects their lives particularly through freedom of association, freedom of expression and freedom of the press. We support policies and institutions targeted towards poverty reduction which empower those who are least represented, by building ownership of development and democracy reforms among citizens. 12. We stress that women’s empowerment and participation at all levels of economic, political and social life is key to poverty reduction, democratic development and the full enjoyment of their human rights. We also underscore that the United Nations Millennium Declaration affirms that the equal rights and opportunities of men and women must be assured and calls for, inter alia, the promotion of gender equality and the empowerment of women as being effective and essential to eradicating poverty and hunger, in combating diseases and in stimulating sustainable development.

22 Bamako Consensus

167

To these ends, we resolve to: 13. Advocate and communicate the importance of democracy for facilitating equitable and sustainable development and poverty reduction in domestic and foreign policy initiatives and in international and regional fora. 14. Earnestly engage the Community of Democracies as a forum for the exchange of experiences and information among democracies on sustainable development and economic growth within a democratic framework. 15. Identify public and private sources of funding to support regional dialogues on equitable development, poverty reduction and democracy reform supported by the establishment of a network for the exchange of information and experiences among governments, civil society organizations, political parties and the private sector. 16. Support economic, social and institutional reforms that promote development, expand social justice to benefit all people, particularly the poorest, and that are implemented in a measured way, in order to maintain their support for democracy. 17. Expand and increase reforms that promote equitable development and reduce poverty through widening access to innovative financing mechanisms, reforming land ownership, investing in basic social services, integrating the informal sector into the formal economy, ensuring decent labor, and creating an enabling environment for small and medium enterprises. 18. Give priority to girls’ education, promote gender equality and economic opportunities including the property rights of women, and increase women’s participation and representation in political processes. State Institutions 19. We recognize that a central challenge for advancing development is to strengthen democracy through building key institutions of democratic governance such as a system of representation with well functioning political ­parties, an electoral system that guarantees free and fair elections based on secret balloting and universal suffrage, a vibrant civil society, an independent media, and civilian and democratic control of the armed forces. 20. We emphasize the importance of a system of checks and balances in ­government with independent judicial and legislative branches. In particular, we stress the integral role of the justice system in maintaining the rule of law and human rights, and the importance of strong parliamentary institutions to guarantee citizen representation and government accountability. 21. We acknowledge that democracy cannot thrive without a culture of respect for human rights and the rule of law. As democratic leaders we will continue to

168

chapter C

work to educate citizens and strengthen institutions, in order to prevent the abuse of power and to promote social justice. 22. Without prejudice to the private sector, we highlight the importance of an effective, efficient and responsive public sector to help deliver efficient services responding to social needs for education, housing and health care, social security, and assistance in job creation, especially for youth. 23. We stress that decentralization and strengthening the capacities of local governance institutions provide an important basis for more participatory and inclusive governance. We emphasize the importance of promoting the active participation of women in local government institutions and in the decision making process at all levels. 24. We recall in the Santiago Commitment our resolve to promote an environment for strengthening the democratization, modernization, and innovation of political parties and affirm the need for greater focus on the role of political parties in poverty reduction policies. 25. We assert that corruption is both a transnational and local problem and has a negative impact on development and poverty reduction. Corruption impacts the poor disproportionately and hinders economic development by diverting investments in infrastructure, institutions and social services. Corruption is an insidious threat to democracy that fosters an anti-democratic environment that leads to disrespect for institutions and legitimate authority. 26. We welcome voluntary partnerships and initiatives that promote corporate social responsibility (csr) and improve the domestic good governance of ­natural resources. We note positively the Extractive Industries Transparency Initiative (eiti), which is an important step in promoting csr and good governance as facilitators for transforming natural resource revenues into economic growth and poverty reduction. To these ends, we resolve to: 27. Support and encourage the development of nationally owned, participative and independent governance audits that monitor the quality of institutions and processes of democratic governance in a country and thereby bring about greater local transparency and accountability for each country’s democratic performance. 28. Implement all applicable obligations contained in international human rights treaties including those related to women, children, all migrants including migrant workers and members of their families, political and other prisoners under detention, persons who are victims of forced disappearances, and people with disabilities, and encourage those States that are not yet a Party to all international human rights instruments to consider ratifying them.

22 Bamako Consensus

169

29. Give greater attention to the engagement of the legislative branch and political parties in national poverty reduction and development planning processes and strategies. 30. Support decentralization, where appropriate, and strengthen measures that help to move decision making processes closer to all citizens, including rural populations, as part of democratic development. 31. Encourage States to allow access to domestic and international election observers with full respect to their domestic and legal frameworks and for each country organizing elections to conform with relevant international standards including the Declaration of Principles for International Election Observation and the Code of Conduct for International Observers (2005). 32. Implement the obligations that we have taken on under the United Nations Convention against Corruption (2005) in partnership with all stakeholders and monitor areas most prone to corruption to develop timely anti-corruption strategies. Non-State Actors 33. We acknowledge that to create an enabling environment for democracy and development, we must focus on building partnerships between government, the private sector and civil society. 34. We reaffirm and highlight the important role played by civil society in all aspects of democratic governance and development and stress that an effective government and civil society are mutually reinforcing. 35. We stress in particular the role of civil society in increasing citizen participation in electoral processes, local governance and public policy making and the important role civil society plays in advocating on behalf of vulnerable groups in society, including women, the poor, indigenous peoples, persons belonging to racial and ethnic minorities, persons with disabilities, the elderly, youth, migrants and other vulnerable groups. We reaffirm our commitment to strengthening civil society to play this crucial role in helping to build and sustain democratic societies. 36. While we are supportive of the role of civil society in promoting and strengthening democratic governance, we also underline that it is necessary and important for its organizations to be always mindful of their responsibilities, including, inter alia, respect for domestic and international laws, ethical standards and cultural diversity consistent with international human rights law. 37. We recall our commitment in Santiago to promote and implement strategies, policies, programs and concrete measures designed to foster education for democracy especially, for youth and women. 38. We underline that freedom of expression and association, and access to information and communication technologies, including the Internet, serve to strengthen civil society, enhance citizen participation and provide a basis for protections against government abuse.

170

chapter C

39. We strongly reject violence and all forms of extremism and intolerance including ethnic and religious hatred, xenophobia and manifestations and acts of racism and recognize the need for all participants in the democratic process to respect democratic values, human rights and the rule of law. We stress that racism is incompatible with democracy and that governments with racist or xenophobic political platforms cannot be considered democratic. We recognize that interfaith, and intercultural dialogue and cooperation for peace are crucial in engendering tolerance and moderation which are essential values of a democratic way of life. 40. Strengthening the democratic governance of countries requires that all ­sectors, including the private sector, fulfill their corresponding responsibilities and obligations related to human rights, labor standards, transparency and the  law. We emphasize that a strong and socially responsible private sector that  takes into account respect for human rights is critical for job creation, long-term growth, improved human development as well as for sustaining democracy. 41. We recognize the importance of economic freedom, market transparency, equal opportunities and democratic governance, in generating broad based prosperity that benefits all citizens. We stress that free markets operating in a free political environment is not sufficient to ensure sustainable growth. While emphasizing the primary responsibility that each country has for its own economic and social development, and the role of national policies and development strategies, we underline the importance of a democratic, transparent, and enabling international economic environment. To these ends, we resolve to: 42. Promote civil society, including non-governmental organizations, labor and business associations, and independent media in their exercise of their democratic rights and responsibilities. 43. Increase support to civil society especially to facilitate citizens’ engagement in policy making processes and in the provision of civic and democracy education. In particular, we take note of the recommendations outlined in the Global Strategic Plan for Democracy Education (2003) which sets out principles and practical measures for democracy education. 44. Support and encourage non-governmental organizations by urging countries to adopt legislation aimed at strengthening civil society and to ensure that registration, formation, funding and operation of non-governmental organizations and their peaceful activities be carried out. At the same time we remind countries that any regulation placed on, or action taken, regarding non-governmental

22 Bamako Consensus

171

organizations must be consistent with domestic and international legal obligations and be enforced in an apolitical, fair and transparent manner. 45. Permit non-governmental organizations to carry out their peaceful activities without intimidation, to develop and maintain contact and cooperate with their own members and other elements of civil society at the national and international levels. 46. Provide access by all citizens to independent media and information communications technology, and facilitate the development of free and fair media, including newspapers, radio, television and the Internet. However in this context we condemn any use of the Internet aimed at inciting violence, including violence motivated by racial or religious intolerance. 47. Promote freedom of expression and the free flow of information on the Internet by allowing citizens to express themselves through online fora and allowing them broad access to websites and search engine results. 48. Develop public campaigns, with special emphasis on youth, aimed at raising awareness of the harmful effects of political extremism on democracy and the importance of respecting and protecting core democratic standards. 49. Encourage the active engagement of the private sector at national, regional and international levels in strategies and policies to promote democracy, development and respect for human rights. 50. Consider creating within the Community of Democracies a forum for private sector representatives to take a more active role in informing the actions of the Community of Democracies. Regional Organizations 51. We emphasize the significant role regional organizations can play in promoting democracy and the critical value of a regional approach to supporting democracy, development and enhancing security. 52. We recognize that underdevelopment and extreme poverty renders countries vulnerable to the escalation of transnational organized crime including illegal trafficking in persons, especially women and children, and illegal trafficking in drugs and firearms. 53. We welcome and encourage regional and inter-regional initiatives to promote democracy, human rights and the rule of law in all parts of the world including the African Charter on Democracy, Elections and Governance, the Community of Democratic Choice established to promote democracy, human rights and the rule of law in Eastern Europe and the Statement of Intent between the African Union and the Organization of American States to develop joint democracy promotion activities. We also welcome the African

172

chapter C

Peer Review Mechanism (aprm) through which the sharing of experiences and reinforcement of best practices, seeks to ensure that the policies and ­standards of participating States lead to political stability, economic growth and sustainable development, the Inter American Democratic Charter, the Mercosur Ushuaia Protocol, the joint strategy between the European Union and Africa based on the principles of peace and security, good governance and human rights, trade and regional integration and social development as well as the European Initiative for Democracy and Human Rights and the democracy support activities of the Organization for Security and Cooperation in Europe (osce). To these ends, we resolve to: 54. Improve cooperation among regional organizations themselves and between them and the United Nations through the facilitation of exchanges and active participation in regional fora on democracy and development issues. 55. Encourage the adoption, and support the implementation where these exist, of regional democracy charters and cooperative initiatives. 56. Strengthen the capacities of regional organizations and other intergovernmental organizations in matters of crisis management, conflict prevention and resolution, post conflict rehabilitation, election observation, transnational organized crime and terrorism in accordance with international and humanitarian law. International Institutions and Cooperation 57. We assert that States and multilateral organizations should seek to promote the principles of democracy in furtherance of the global interest. 58. We take into account the Santiago Commitment which states: the democratization of the multilateral system, particularly the United Nations, is the necessary counterpart to democratic practices within nations. Every nation that practices democracy must strive to ensure that in international affairs, decision making is equally open, transparent, legitimate and equitably representative. 59. We stress the importance of membership in global and regional organizations as a means to integrate developing countries into existing networks of economic, political and security partnerships. In this respect, we encourage greater cohesiveness and cooperation among Community of Democracies participants in advocating common views in key international fora on the importance of democracy to global challenges and opportunities. 60. We strongly condemn terrorism in all its forms and manifestations. There can be no justification for any act of terrorism on any grounds. Terrorism is a global scourge and a major threat to democracy and international peace and security. It is imperative for the international community to come together to combat terrorism in a long-term, sustained and comprehensive manner to be

22 Bamako Consensus

173

pursued in full respect of international law, particularly human rights, refugee and humanitarian law. 61. We call upon States to abide by their commitments in the United Nations Counter-Terrorism Conventions and Protocols and relevant Security Council Resolutions. We further call upon all States to cooperate in implementing the United Nations Global Counter Terrorism Strategy (2006) and to make concerted efforts to finalize the draft un Comprehensive Convention on International Terrorism expeditiously. 62. We emphasize the need to support the consolidation of democracy in new and newly transitioning democratic countries including through international cooperation and bilateral assistance during the early years of their transitions, when the democratic process is most vulnerable. 63. We encourage countries to integrate democracy assistance and poverty reduction in their development assistance programs. 64. We agree that open, rule based and non discriminatory trade and financial systems are key to supporting development and good governance. We stress the importance of concluding successfully the World Trade Organization Doha Development Round in this regard. 65. We recognize the role and work of the United Nations Development Program in supporting the building of democratic governance within a sustainable human development framework. To these ends, we resolve to: 66. Take collaborative measures or actions as outlined in the Seoul Plan of Action to respond to overt threats to democracy, such as disruption of con­ stitutional rule or persistent unconstitutional alteration of the democratic order, by working together within the framework of regional and international organizations. 67. Assist with the consolidation of democracies in countries that are undergoing democratic transitions and other new democracies, and strengthen support for institutions that promote democratic values and strengthen civil society. 68. Encourage and provide incentives both bilaterally and through multilateral institutions to those developing countries that are effectively investing in democratic and economic reforms. 69. Work in consultation with participant countries to intensify efforts to integrate democratic reforms in developing countries into development strategies, policies and programs, taking into consideration the Paris Declaration on Aid Effectiveness. 70. Support the United Nations Democracy Fund and encourage a continued focus on financing activities that bolster democratic governance and at the same time foster poverty reduction and capacity development.

174

chapter C

Functioning and Outreach of the Community of Democracies 71. We are grateful to the Polish Government for offering to host the newly created Permanent Secretariat of the Community of Democracies. The text of the decision to establish the Secretariat constitutes an annex to this declaration. We call on the new Secretariat to ensure a sustained focus in following up the Community of Democracies commitments. 72. We commend the Convening Group for its efforts in implementing the strategic agenda of our Community, in particular for finalizing its enlargement from ten to 16 members in 2006. We also welcome the emergence of the “International Steering Committee” of the Non-Governmental Process which provides a forum for the exchange of ideas and experience between governments and civil society actors. 73. We welcome the engagement of civil society in the Community of Democracies and commend the efforts of the International Advisory Com­ mittee (iac) for its input to the invitation process. We commit to engaging the iac to further strengthen the Community of Democracies. 74. We congratulate the efforts of the four Community of Democracies thematic Working Groups (Democratic Governance and Civil Society; Poverty, Development and Democratic Governance; Regional and Inter-regional Cooperation for Democratic Governance; and Promoting Democracy and Responding to National and Transnational Threats to Democracy) in implementing the decisions taken at the ministerial meetings and in promoting the cause of democracy. We will continue to support the Working Groups as an important mechanism for implementing and continuing work between the Ministerial meetings. 75. We reaffirm the call in the Santiago Commitment for greater cooperation with the International Conference of New or Restored Democracies (icnrd) to promote and consolidate democratic governance in emerging and restored democracies while recognizing the unique purpose of each organization. 76. We declare our commitment to strengthen efforts to mobilize under the auspices of the United Nations Democracy Caucus to coordinate common positions on democracy and human rights issues before United Nations bodies. 77. As agreed in the Santiago Commitment, we will support the candidacy of countries contributing effectively to the promotion and protection of democracy and human rights worldwide in bodies focused on elements of democratic governance, such as the Human Rights Council. 78. We welcome the designation of an International Democracy Day as adopted by the United Nations General Assembly.

23   Ulaanbaatar Declaration

23

Ulaanbaatar Declaration



Community’s Attainments and Global Challenges

175

Adopted by the Seventh Ministerial Conference, Unlaanbaatar (Mongolia), 29 April 2013 We the Participants of the Seventh Ministerial Conference of the Community of Democracies held in Ulaanbaatar, Mongolia, on 29th April 2013; Reaffirming our unwavering commitment and adherence to the purposes and principles of the Warsaw Declaration of 27 June 2000 establishing the Community of Democracies and subsequent Ministerial decisions of the Community of Democracies, Reiterating our obligations under the United Nations Charter and our common allegiance to the principles and spirit of the Universal Declaration of Human Rights and, as appropriate, other relevant international instruments, Reaffirming that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing, Reiterating also our conviction that democracy is the best known form of government to promote and protect human rights, fundamental freedoms and  the rule of law for all, and to strengthen peace as well as to promote prosperity, Recognizing that human rights, democracy and the rule of law are strengthened when States work to eliminate discrimination of any kind and strive to ensure the full participation of women on equal terms with men, in all spheres of political, social and economic life, Stressing the importance of ensuring that government is transparent, responsive, effective and accountable to the people, and that everyone t­ angibly benefits from free and open societies that embrace democratic institutions, respect for the individual, tolerance of diversity, pluralism, and the rule of law, Reaffirming the important role played by individual citizens, civil society in decision making and policy formulation, and in improving the quality, legitimacy, and effectiveness of democracies, Expressing appreciation for the positive democratic trends in many parts of the world since the Vilnius Ministerial Conference held in 2011, including an increasing number of free and fair elections, Welcoming the growing respect for democratic values in many parts of the world, including the initial steps taken in Northern Africa and the Middle East as well as the beginnings of political transition in Myanmar,

176

chapter C

Noting with concern, however, the decline in the promotion and protection of social and political rights and civil liberties as well as the restrictions placed on individuals and civil society and the freedoms of expression, association, religion and belief in some countries, Expressing concern for the people of Mali who have been excluded from the democratic development of their country through the use of force, and reiterating the Community of Democracies’ resolve to support the return to a pluralistic and stable democracy governed by rule of law in Mali through inclusive national dialogue and long-term reconciliation, Acknowledging the important role of the United Nations as well as regional and non-governmental organizations in democratic development, and other initiatives past and present that support and promote democracy and democratic values throughout the world, Mindful of the role of international cooperation in promoting the goals set forth in the Warsaw Declaration and other international documents and commitments, including the Millennium Development Goals (mdgs), and convinced that in this field the Community of Democracies can play an important role in such cooperation and exchange of experience as well as through the provision of peer support, Recalling that equality between men and women and the protection and promotion of women’s rights are an integral part of human rights and a fundamental criterion of democracy, Have adopted the following: 1. We reaffirm our resolve to advance democracy in our countries and worldwide, helping bridge the gap between principles and practice and, to that end, to cooperate in an open, inclusive and transparent manner with relevant national and international stakeholders within our respective countries as well as among ourselves and other international stakeholders. 2. We reaffirm our continued commitment to the cd reform process, ­initiated under the Lithuanian Presidency and welcome the institutional reforms of the cd advanced under Mongolia’s Presidency, as decided by the Vilnius Ministerial Conference in 2011, including the establishment of the first Governing Council and Executive Committee, the appointment of the Community’s first SecretaryGeneral and the institutionalization of its Permanent Secretariat. These basic institutional structures are contributing to the development of the cd into a dynamic coalition able to take real action to strengthen democracy and civil society worldwide. 3. We commend the concrete actions undertaken by the Presidency in promoting education for democracy, and will work together to promote the full and

23   Ulaanbaatar Declaration

177

meaningful implementation of the United Nations General Assembly resolution A/RES/67/18 on Education for Democracy, which would contribute to the strengthening of democratic society and institutions, the realization of human rights and the achievement of the mdgs. Further, we commend to the attention of all cd member states the action plan contained in the International Steering Committee’s Charlottesville Declaration on Creating a Culture of Democracy through Education (ccd). 4. We applaud the concrete actions taken by the Community’s working groups since the Vilnius Ministerial Conference in support of the Community of Democracies’ objectives, including: – Enabling and protecting civil society by coordinating diplomatic ­action to prevent and address the adoption of laws and regulations that unduly restrict the work of civil society; – Establishing the Leadership Engaged in New Democracies (lend) Network and its Working Group – a digital platform for sharing best practices, peer-to-peer exchanges, and information on reform and the rule of law with those leaders guiding democratic transitions; – Streamlining the activities of the Working Group on Education for Democracy to focus on practical actions, such as organizing international seminars, developing curriculum framework, establishing a new digital library of democracy education curricula and materials. 5. We also welcome other activities by the Community, including: – Organizing the International Women’s Leadership Forum in Ulaanbaatar in July 2012; – Convening of the first informal Asia-Pacific Ministerial meeting in Ulaanbaatar on 28 April 2013 at which the Ministers decided to regularly hold such a meeting at the margin of the cd Ministerial Conferences; – Launching an Asian network for democracy to consolidate regional civil society activities and strengthening democratic gains in Asia; – Promoting regional and country-to-country dialogue, cooperation and exchange of experiences in democratic development; – Continued meetings of the un Democracy Caucus that addressed ­issues such as democracy education, the rule of law, and democracy support; – Successfully implementing the first round of the Democracy Partnership Challenge Task Forces for Tunisia and Moldova; – Initiating the process to apply for an observer status with the United Nations General Assembly; – Recognition of the Parliamentary Forum for Democracy, established under the Lithuanian Presidency, as an affiliated body of the Community of Democracies;

178

chapter C

– Holding the first meeting of a Group of Friends of the Community of Democracies in Bamako with the aim of supporting Mali’s return to democratic order; – Establishing an Ad Hoc Group for Myanmar to support that country’s transition towards democracy; – Supporting effective cooperation with civil society to improve the transparency, accountability, legitimacy and performance of democratic governments. 6. We welcome the concrete and practical outcomes of the fora of the five pillars of the cd, namely, parliamentary, civil society, women, youth and the corporate fora, held in Ulaanbaatar on 27–28 April, which addressed the challenges and opportunities in promoting and consolidating democratic reforms, including means of harnessing open governance for democracy, and addressing the issues of more effectively fighting against corruption. These fora also provided an opportunity to share experiences and chart further cooperative measures, including related to tackling the issues of open government, transparency, democratic governance and support for emerging democracies. Their input to this Ministerial conference, annexed to this declaration, is greatly appreciated and lays the basis for further concrete actions of the cd in cooperation with its pillars. 7. We resolve to further increase and strengthen the activities of the Community of Democracies in support of greater democratic governance in our countries as well as in promoting and protecting democratic values in countries where democracy faces challenges. To this end we: – Support the activities of the pillars of the cd in promoting transparent and accountable democratic governance; in addressing, where necessary, the challenges to such governance and promoting human rights and freedom; – Work together to emphasize human rights, fundamental freedoms and democratic governance as integral parts of inclusive development and the eradication of extreme poverty as the international community works to formulate the post-2015 development framework; – Provide support to countries undergoing transitions to democracy to facilitate the emergence of democratic societies defined by good governance, protection of human rights and fundamental freedoms as well as respect for rule of law as stated in the resolution 19/35 of the United Nations Human Rights Council; – Support and defend an enabling environment for civil society, including through the adoption of legislation that does not put undue restrictions on civil society, in all nations;

23   Ulaanbaatar Declaration

179

– Resolve to protect and promote freedom of expression, peaceful assembly and association, religion and belief and provide support to those whose rights are being denied or infringed upon; emphasizing that human rights including freedom of expression apply online as well as offline; – Improve international observations of elections so as to ensure the transparent and genuine expression of the will of people and, if needed, offer ­recommendations for improving the integrity and effectiveness of electoral and related processes without interfering in the election processes; – Support the strengthened role of the Community of Democracies at the United Nations by: – Encouraging the un Democracy Caucus to take a leading role in ­supporting the goals of the United Nations Charter, the Universal Declaration of Human Rights and the Community of Democracies Warsaw Declaration, in the General Assembly, the Human Rights Council and other relevant un bodies; – Supporting the work of the un special mechanisms on issues relating to democracy and human rights, particularly the un Special Rapporteurs on the right to freedom of peaceful assembly and of association, the right to freedom of opinion and expression, and the situation of human rights defenders; – Developing closer cooperation with the United Nations Development Program, the United Nations Democracy Fund, other relevant un bodies and the un Alliance of Civilizations. – Promote the goals of empowering of women and their full participation in all spheres of political, social and economic life as well as fighting gender-based violence; – Promote further cooperation and coordination of efforts between the Community of Democracies and international and regional organizations, and initiatives such as the Open Government Partnership; – Redouble our efforts to include civil society views in all aspects of the Community of Democracies, to provide support to the nongovernmental International Steering Committee, and to support civil society in all countries in the world; – Explore the benefits of transforming the Community of Democracies towards a fully-fledged international organization; 8. We welcome the new Presidency of El Salvador and express our commitment to support and assist El Salvador in leading multi-stakeholder efforts to protect, strengthen and advance democracy and democratic values in our countries and beyond.

180

chapter C

9. We congratulate Mongolia on its outstanding leadership of the Community of Democracies and its efforts to advance democracy and democratic values in the Asia-Pacific region and around the world. We also express words of gratitude to Mongolia for the successful hosting of the VII Ministerial Conference of the Community of Democracies in Ulaanbaatar.

chapter D

Inter-Parliamentary Union Introduction The Inter-Parliamentary Union (ipu) was originally established in 1889 by individual national parliamentarians as a forum for exchange and cooperation. Today it is an international organization in which national parliaments of sovereign states are members (Art. 1, para. 1 ipu Statutes). According to Art. 8 of the Statutes it possesses four main organs: the Assembly, the Governing Council, the Executive Committee and the Secretariat. Currently, the national parliaments of 166 countries are members of the ipu. In addition, 10 regional parliamentary assemblies have the status of associate members. The major goals of the ipu are set out in Art. 1, para. 2 of the Statutes. According to this provision, the ipu shall work inter alia for the “solid establishment of representative institutions.” In that context the provision establishes a clear nexus between human rights and democracy when it commits the organization to defending and promoting human rights “respect for which is an essential factor of parliamentary democracy and development.” In order to fulfil this task, the ipu promotes democracy through a broad range of activities, including the setting of standards and guidelines on key issues of democracy, technical assistance programs, and the promotion of knowledge on the functioning and role of parliaments as representative institutions. The documents reprinted in this section mainly relate to the ipu’s standard setting activities. They address concrete issues of organizing free and fair ­elections (→ Doc. 25), the rights and duties of the opposition in parliament (→ Doc. 28), preventing unconstitutional change of government (→ Doc. 29), as well as accountability and transparency (→ Docs. 33 and 34). On the democracy documents of the Inter-Parliamentary Union, see Beat Habegger, Parlamentarismus in der internationalen Politik, St. Gallen, 2005; Fredrik Sterzel, The Inter-parliamentary Union, Stockholm 1968; Felix Arndt, Inter-Parliamentary Union, in: Rüdiger Wolfrum (ed.), mpepil.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_006

182

chapter D

24 The Implementation of Educational and Cultural Policies Designed to Foster Greater Respect for Democratic Values Resolution adopted without a vote by the Inter-Parliamentary Conference, New Delhi (India), 17 April 1993 (89th session) The 89th Inter-Parliamentary Conference, Welcoming the progress which has been made in many countries towards establishing democracy, and recognizing that democracy is a political system wherein power is shared among citizens, and rulers at all levels are freely and periodically elected and are accountable to the people, and that it is for every country to build democracy in conformity with its historical traditions, sociocultural identity and fundamental ideals, Underlining that sustainable economic and social development requires broadly based democratic participation in political, economic and social s­ ystems, and recalling the initiatives of the United Nations and other international bodies to address the wider issues of social progress and the alleviation of poverty, Reaffirming that respect for human rights is an integral part of, and an essential basis for, the development of human resources in all countries, Concerned that inequalities in society tied to an individual’s religion, race, colour or sex, are detrimental to democratic life and practice, and affirming the right of every citizen to be educated and trained to become literate and economically productive, Recalling the declarations and resolutions of international and multilateral bodies reaffirming democratic values and fundamental freedoms, especially the Charter of the United Nations, the Universal Declaration of Human Rights and the Convention on the Rights of the Child as well as United Nations General Assembly resolutions 34/170 and 35/191 concerning the right to education and resolution 41/187 proclaiming the period 1988–1997 the World Decade for Cultural Development, Referring to the Declaration on “Education for All” (1990) made at a world conference organized by undp, unicef, unesco and the World Bank, and bearing in mind unesco’s plan to link international education with human rights education as well as the unesco-sponsored 44th International Conference on Education in 1994, Recognizing that education is a prerequisite for the acceptance and further development of democratic values in a process involving the participation of all citizens, Asserting that education and literacy ensure that everyone enjoys personal liberty, while taking account of the historical background of developing

24 The Implementation of Educational and Cultural Policies

183

countries and their social and economic circumstances, particularly the funding of their expenditure on education to reduce illiteracy and elementary school drop-out rates, especially in the present climate of inequality and injustice in international economic relations, Recognizing that cultural interaction can make an important contribution to international understanding and co-operation, 1. Emphasizes that the establishment of political freedom, popular participation, respect for human rights, justice and equality is essential to sustained economic growth and development; 2. Underlines the role in democratic societies of non-governmental organizations and other institutions which are necessary for a pluralist society; 3. Calls on all parliaments and governments to ensure that citizens are aware of their democratic rights, their responsibilities and the need to participate in the democratic process, and to enable them to do so; 4. Reaffirms that access to information is an essential part of democratic development, and calls on countries to ensure implementation of the inalienable right of all individuals – especially girls – to education, so that all citizens may acquire the knowledge, abilities and skills which are indispensable for shaping their lives and their system of government in freedom; 5. Calls on governments to ensure, in accordance with Article 13 of the International Covenant on Economic, Social and Cultural Rights, universal access to, and completion of, high-quality primary education, especially for girls, and towards this end, to mobilize financial and human resources, public, private and voluntary; 6. Calls for strengthening partnerships in the provision of educational and cultural programmes among all sectors of society, including central and local government and non-governmental organizations, the private sector, trade unions, local communities, religious groups, individual families and political parties; 7. Calls on all international development agencies – multilateral, bilateral and non-governmental – to support initiatives to achieve universal primary education and literacy for adults in all countries; 8. Stresses the need to realize the importance of education systems in a democracy, because governments are the servants of the people and the people’s capacity to create, sustain and improve democratic governments is largely dependent on the quality and effectiveness of the education systems; 9. Stresses the need to involve the media in a joint educational undertaking; 10. Considers that education programmes must aim to instill in students the principles of democratic life and its foundations; knowledge of the institutions of their country and of man’s rights and responsibilities in today’s world; the ability to reflect on the conditions for and means of promoting respect for

184

chapter D

these rights and responsibilities; a capacity for personal reflection and critical analysis; and respect, tolerance and understanding of others; 11. Invites parliamentarians to urge their respective governments to adopt a global strategy to implement policies to this effect; 12. Stresses the need for governments to give more prominence to civic instruction and courses on democracy and political science in school curricula, and requests governments to place an emphasis on the political education of the population through sensitization campaigns, lectures and seminars on democracy with a view to popularizing the fundamental values of democracy; 13. Emphasizes that educational and cultural activities must be complementary if they are to play their part in individual fulfillment; 14. Emphasizes the need to promote exchange between the various cultures by means of training and exchange programmes, as well as the teaching and dissemination of living languages; 15. Calls, in view of the effects and consequences of worldwide migratory movements, for the formulation of strategies at national and international ­levels whereby immigrants may preserve their cultural identities while becoming integrated in the cultures of receiving countries; 16. Stresses the need to combat all forms of corruption through education, including corruption in commercial transactions which undermines the honesty and integrity of public institutions and leads to the wasting of scarce resources; 17. Calls on all parliaments represented in the Inter-Parliamentary Union, particularly those of the richer countries, to urge their respective governments, through the resumption of the North–south dialogue, to render all possible assistance to developing countries in their efforts to promote democratic ­values through education.

25 Declaration on Criteria for Free and Fair Elections

25

185

Declaration on Criteria for Free and Fair Elections

Unanimously adopted by the Inter-Parliamentary Council, Paris (France), 26 March 1994 (154th session) The Inter-Parliamentary Council, Reaffirming the significance of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which establish that the authority to govern shall be based on the will of the people as expressed in periodic and genuine elections, Acknowledging and endorsing the fundamental principles relating to periodic free and fair elections that have been recognized by States in universal and regional human rights instruments, including the right of everyone to take part in the government of his or her country directly or indirectly through freely chosen representatives, to vote in such elections by secret ballot, to have an equal opportunity to become a candidate for election, and to put forward his or her political views, individually or in association with others, Conscious of the fact that each State has the sovereign right, in accordance with the will of its people, freely to choose and develop its own political, social, economic and cultural systems without interference by other States in strict conformity with the United Nations Charter, Wishing to promote the establishment of democratic, pluralist systems of representative government throughout the world, Recognizing that the establishment and strengthening of democratic ­processes and institutions is the common responsibility of governments, the electorate and organized political forces, that periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the rights and interests of the governed and that, as a matter of practical experience, the right of everyone to take part in the government of his or her country is a crucial factor in the effective enjoyment by all of human rights and fundamental freedoms, Welcoming the expanding role of the United Nations, the Inter-Parliamentary Union, regional organizations and parliamentary assemblies, and international and national non-governmental organizations in providing electoral assistance at the request of governments, Therefore adopts the following Declaration on Free and fair Elections, and urges Governments and Parliaments throughout the world to be guided by the principles and standards set out therein:

186

chapter D

1 Free and Fair Elections In any State the authority of the government can only derive from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage. 2 Voting and Elections Rights (1) Every adult citizen has the right to vote in elections, on a non-discriminatory basis. (2) Every adult citizen has the right to access to an effective, impartial and nondiscriminatory procedure for the registration of voters. (3) No eligible citizen shall be denied the right to vote or disqualified from registration as a voter, otherwise than in accordance with objectively verifiable criteria prescribed by law, and provided that such measures are consistent with the State’s obligations under international law. (4) Every individual who is denied the right to vote or to be registered as a voter shall be entitled to appeal to a jurisdiction competent to review such decisions and to correct errors promptly and effectively. (5) Every voter has the right to equal and effective access to a polling station in order to exercise his or her right to vote. (6) Every voter is entitled to exercise his or her right equally with others and to have his or her vote accorded equivalent weight to that of others. (7) The right to vote in secret is absolute and shall not be restricted in any manner whatsoever. 3 Candidature, Party and Campaign Rights and Responsibilities (1) Everyone has the right to take part in the government of their country and shall have an equal opportunity to become a candidate for election. The criteria for participation in government shall be determined in accordance with national constitutions and laws and shall not be inconsistent with the State’s international obligations. (2) Everyone has the right to join, or together with others to establish, a political party or organization for the purpose of competing in an election. (3) Everyone individually and together with others has the right: – To express political opinions without interference; – To seek, receive and impart information and to make an informed choice; – To move freely within the country in order to campaign for election; – To campaign on an equal basis with other political parties, including the party forming the existing government.

25 Declaration on Criteria for Free and Fair Elections

187

(4) Every candidate for election and every political party shall have an equal opportunity of access to the media, particularly the mass communications media, in order to put forward their political views. (5) The right of candidates to security with respect to their lives and property shall be recognized and protected. (6) Every individual and every political party has the right to the protection of the law and to a remedy for violation of political and electoral rights. (7) The above rights may only be subject to such restrictions of an exceptional nature which are in accordance with law and reasonably necessary in a democratic society in the interests of national security or public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others and provided they are consistent with States’ obligations under international law. Permissible restrictions on candidature, the creation and activity of political parties and campaign rights shall not be applied so as to violate the principle of non-discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (8) Every individual or political party whose candidature, party or campaign rights are denied or restricted shall be entitled to appeal to a jurisdiction competent to review such decisions and to correct errors promptly and effectively. (9) Candidature, party and campaign rights carry responsibilities to the community. In particular, no candidate or political party shall engage in violence. (10) Every candidate and political party competing in an election shall respect the rights and freedoms of others. (11) Every candidate and political party competing in an election shall accept the outcome of a free and fair election. 4 The Rights and Responsibilities of States (1) States should take the necessary legislative steps and other measures, in accordance with their constitutional processes, to guarantee the rights and institutional framework for periodic and genuine, free and fair elections, in accordance with their obligations under international law. In particular, States should: – Establish an effective, impartial and non-discriminatory procedure for the registration of voters; – Establish clear criteria for the registration of voters, such as age, ­citizenship and residence, and ensure that such provisions are applied without distinction of any kind;

188

chapter D

– Provide for the formation and free functioning of political parties, possibly regulate the funding of political parties and electoral campaigns, ensure the separation of party and State, and establish the conditions for competition in legislative elections on an equitable basis; – Initiate or facilitate national programmes of civic education, to ensure that the population are familiar with election procedures and issues. (2) In addition, States should take the necessary policy and institutional steps to ensure the progressive achievement and consolidation of democratic goals, including through the establishment of a neutral, impartial or balanced mechanism for the management of elections. In so doing, they should, among other matters: – Ensure that those responsible for the various aspects of the election are trained and act impartially, and that coherent voting procedures are established and made known to the voting public; – Ensure the registration of voters, updating of electoral rolls and balloting procedures, with the assistance of national and international observers as appropriate; – Encourage parties, candidates and the media to accept and adopt a Code of Conduct to govern the election campaign and the polling period; – Ensure the integrity of the ballot through appropriate measures to prevent multiple voting or voting by those not entitled thereto; – Ensure the integrity of the process for counting votes. (3) States shall respect and ensure the human rights of all individuals within their territory and subject to their jurisdiction. In time of elections, the State and its organs should therefore ensure: – That freedom of movement, assembly, association and expression are respected, particularly in the context of political rallies and meetings; – That parties and candidates are free to communicate their views to the electorate, and that they enjoy equality of access to State and publicservice media; – That the necessary steps are taken to guarantee non-partisan coverage in State and public-service media. (4) In order that elections shall be fair, States should take the necessary measures to ensure that parties and candidates enjoy reasonable opportunities to present their electoral platform. (5) States should take all necessary and appropriate measures to ensure that the principle of the secret ballot is respected, and that voters are able to cast their ballots freely, without fear or intimidation. (6) Furthermore, State authorities should ensure that the ballot is conducted so as to avoid fraud or other illegality, that the security and the integrity of the

25 Declaration on Criteria for Free and Fair Elections

189

process is maintained, and that ballot counting is undertaken by trained personnel, subject to monitoring and/or impartial verification. (7) States should take all necessary and appropriate measures to ensure the transparency of the entire electoral process including, for example, through the presence of party agents and duly accredited observers. (8) States should take the necessary measures to ensure that parties, candidates and supporters enjoy equal security, and that State authorities take the necessary steps to prevent electoral violence. (9) States should ensure that violations of human rights and complaints ­relating to the electoral process are determined promptly within the timeframe of the electoral process and effectively by an independent and impartial authority, such as an electoral commission or the courts.

190

chapter D

26 Ensuring Lasting Democracy by Forging Close Links between Parliament and the People Resolution adopted by the Inter-Parliamentary Conference, Cairo (Egypt), 15 September 1997 (98th session) The 98th Inter-Parliamentary Conference, Convinced that the dignity of the individual is inviolable, Believing that respect for human rights is not only a fundamental value, but also a crucial element in the development of stable, democratic and prosperous societies at peace with each other, and convinced that the rights of women and children are inherent in human rights, Convinced that respect for human rights is a prerequisite for peace within individual States, as well as for peaceful good-neighbourly relations between States, Also convinced that a parliament elected freely and fairly is the best guarantee of human dignity and the prosperity of citizens, Appreciating that democracy offers the best framework for citizens to develop their creativity and potential and contribute to the establishment, development and preservation of their society, Convinced that access to education and information is vital to citizens’ participation in society, Stressing that the principles of democracy may be applied differently, according to the culture, history and constitution of each nation, Observing nonetheless that democracy presupposes that: The people have the power to decide programmes and policies directly or through representatives chosen in free and fair elections; Those in power are effectively given the means to manage the country; Those in power are accountable to the people, Believing that good governance ensures the effective, honest, equitable, accessible, accountable and transparent exercise of power by governments, Convinced that a representative democracy can only endure if citizens trust  constitutional processes and institutions and if legislators earn their respect, Reasserting that parliament is the true and legitimate representative of the people, and emphasising the need therefore to strengthen links between this institution, its members and the people, Aware that parliament has an obligation to provide citizens with information about its work,

26 Ensuring Lasting Democracy

191

Convinced that elected parliamentarians have a duty to be fully informed of  citizens’ circumstances and problems through constant communication with their constituents, Acknowledging that the media have an important role to play in facilitating communication between parliament and citizens, Further acknowledging the important role which various groups and institutions play in a democracy by articulating diverse sociocultural, political and economic issues, Aware that in every society, peaceful conditions in which candidates, representatives and the people are not subject to violence or intimidation are essential for the smooth functioning of the democratic process, Welcoming the role played by the Inter-Parliamentary Union in strengthening the ties of friendship between parliaments and parliamentarians and, through them, between peoples, and conscious of the need for confidence in political processes, parties, parliaments and parliamentarians, 1. Calls on all States to safeguard free and fair elections without any discrimination, in conformity with the Declaration on Criteria for Free and Fair Elections adopted by the Inter-Parliamentary Council in Paris in March 1994; 2. Urges States to condemn and take action against all acts of violence against the people’s representatives, candidates and the people themselves; 3. Further urges States to safeguard the role of parliaments and political institutions so as to enable parliamentarians to play their role properly and freely, inter alia by adopting legislation, overseeing the government and debating major societal issues; 4. Calls on States to ensure citizens’ unrestricted and permanent access to education and information and, in this regard, recognises the value of new technologies for parliamentary work; 5. Also calls on States to recognise and accommodate diversity as a guarantee of democracy in a pluralist society; 6. Further calls on States to strengthen representative parliamentary democracy with constitutional instruments, including petitions and referenda, ­parliamentary recall and the right to initiate legislation, wherever these may be appropriate and feasible in the light of the constitutional system and established political culture; 7. Appeals to parliaments and governments to ensure that citizens are aware of their democratic rights and responsibilities regarding their participation in the democratic process and to see to it that legislation is drafted in clear and simple language which is comprehensible to citizens;

192

chapter D

8. Emphasises the need to foster direct contacts between parliamentarians and citizens through meetings and discussions at all levels, nationally and internationally; 9. Calls on parliaments to ensure, through an open and accessible public information policy, accurate and comprehensive reporting of the work of parliamentarians in the media; 10. Also emphasises the need to ensure unrestricted, objective, ethical and unbiased reporting by the media on the work of parliament and parliamentarians; 11. Encourages National Groups to consider each of the cases in the report of the ipu Committee on the Human Rights of Parliamentarians and to take appropriate follow-up action in their favour.

27 Universal Declaration on Democracy

27

193

Universal Declaration on Democracy

Declaration adopted without a vote1 by the Inter-Parliamentary Council, Cairo (Egypt), 16 September 1997 (161st session) The Inter-Parliamentary Council, Reaffirming the Inter-Parliamentary Union’s commitment to peace and development and convinced that the strengthening of the democratisation process and representative institutions will greatly contribute to attaining this goal, Reaffirming also the calling and commitment of the Inter-Parliamentary Union to promoting democracy and the establishment of pluralistic systems of representative government in the world, and wishing to strengthen its sustained and multiform action in this field, Recalling that each State has the sovereign right, freely to choose and develop, in accordance with the will of its people, its own political, social, economic and cultural systems without interference by other States in strict conformity with the United Nations Charter, Recalling also the Universal Declaration of Human Rights adopted on 10 December 1948, as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted on 16 December 1966, the International Convention on the Elimination of All Forms of Racial Discrimination adopted on 21 December 1965 and the Convention on the Elimination of All Forms of Discrimination Against Women adopted on 18 December 1979, Recalling further the Declaration on Criteria for Free and Fair Elections which it adopted in March 1994 and in which it confirmed that in any State the authority of the government can derive only from the will of the people as expressed in genuine, free and fair elections, Referring to the Agenda for Democratisation presented on 20 December 1996 by the un Secretary-General to the 51st session of the United Nations General Assembly, Adopts the following Universal Declaration on Democracy and urges Governments and Parliaments throughout the world to be guided by its content: First Part – The Principles of Democracy 1. Democracy is a universally recognised ideal as well as a goal, which is based on common values shared by peoples throughout the world community 1 After the Declaration was adopted, the delegation of China expressed reservations to the text.

194

chapter D

irrespective of cultural, political, social and economic differences. It is thus a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility, with due respect for the plurality of views, and in the interest of the polity. 2. Democracy is both an ideal to be pursued and a mode of government to be applied according to modalities which reflect the diversity of experiences and cultural particularities without derogating from internationally recognised principles, norms and standards. It is thus a constantly perfected and always perfectible state or condition whose progress will depend upon a variety of political, social, economic, and cultural factors. 3. As an ideal, democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society and enhance national tranquillity, as well as to create a climate that is favourable for international peace. As a form of government, democracy is the best way of achieving these objectives; it is also the only political system that has the capacity for self-correction. 4. The achievement of democracy presupposes a genuine partnership between men and women in the conduct of the affairs of society in which they work in equality and complementarity, drawing mutual enrichment from their differences. 5. A state of democracy ensures that the processes by which power is acceded to, wielded and alternates allow for free political competition and are the product of open, free and non-discriminatory participation by the people, exercised in accordance with the rule of law, in both letter and spirit. 6. Democracy is inseparable from the rights set forth in the international instruments recalled in the preamble. These rights must therefore be applied effectively and their proper exercise must be matched with individual and collective responsibilities. 7. Democracy is founded on the primacy of the law and the exercise of human rights. In a democratic State, no one is above the law and all are equal before the law. 8. Peace and economic, social and cultural development are both conditions for and fruits of democracy. There is thus interdependence between peace, development, respect for and observance of the rule of law and human rights. Second Part – The Elements and Exercise of Democratic Government 9. Democracy is based on the existence of well-structured and well-functioning institutions, as well as on a body of standards and rules and on the will of society as a whole, fully conversant with its rights and responsibilities.

27 Universal Declaration on Democracy

195

10. It is for democratic institutions to mediate tensions and maintain equilibrium between the competing claims of diversity and uniformity, individuality and collectivity, in order to enhance social cohesion and solidarity. 11. Democracy is founded on the right of everyone to take part in the management of public affairs; it therefore requires the existence of representative institutions at all levels and, in particular, a Parliament in which all components of society are represented and which has the requisite powers and means to express the will of the people by legislating and overseeing government action. 12. The key element in the exercise of democracy is the holding of free and fair elections at regular intervals enabling the people’s will to be expressed. These elections must be held on the basis of universal, equal and secret suffrage so that all voters can choose their representatives in conditions of equality, openness and transparency that stimulate political competition. To that end, civil and political rights are essential, and more particularly among them, the rights to vote and to be elected, the rights to freedom of expression and assembly, access to information and the right to organise political parties and carry out political activities. Party organisation, activities, finances, funding and ethics must be properly regulated in an impartial manner in order to ensure the integrity of the democratic processes. 13. It is an essential function of the State to ensure the enjoyment of civil, cultural, economic, political and social rights to its citizens. Democracy thus goes hand in hand with an effective, honest and transparent government, freely chosen and accountable for its management of public affairs. 14. Public accountability, which is essential to democracy, applies to all those who hold public authority, whether elected or non-elected, and to all bodies of public authority without exception. Accountability entails a public right of access to information about the activities of government, the right to petition government and to seek redress through impartial administrative and judicial mechanisms. 15. Public life as a whole must be stamped by a sense of ethics and by transparency, and appropriate norms and procedures must be established to uphold them. 16. Individual participation in democratic processes and public life at all levels must be regulated fairly and impartially and must avoid any discrimination, as well as the risk of intimidation by State and non-State actors. 17. Judicial institutions and independent, impartial and effective oversight mechanisms are the guarantors for the rule of law on which democracy is founded. In order for these institutions and mechanisms fully to ensure respect for the rules, improve the fairness of the processes and redress injustices, there must be access by all to administrative and judicial remedies on the basis of

196

chapter D

equality as well as respect for administrative and judicial decisions both by the organs of the State and representatives of public authority and by each member of society. 18. While the existence of an active civil society is an essential element of democracy, the capacity and willingness of individuals to participate in democratic processes and make governance choices cannot be taken for granted. It is therefore necessary to develop conditions conducive to the genuine exercise of participatory rights, while also eliminating obstacles that prevent, hinder or inhibit this exercise. It is therefore indispensable to ensure the permanent enhancement of, inter alia, equality, transparency and education and to remove obstacles such as ignorance, intolerance, apathy, the lack of genuine choices and alternatives and the absence of measures designed to redress imbalances or discrimination of a social, cultural, religious and racial nature, or for reasons of gender. 19. A sustained state of democracy thus requires a democratic climate and culture constantly nurtured and reinforced by education and other vehicles of culture and information. Hence, a democratic society must be committed to education in the broadest sense of the term, and more particularly civic education and the shaping of a responsible citizenry. 20. Democratic processes are fostered by a favourable economic environment; therefore, in its overall effort for development, society must be committed to satisfying the basic economic needs of the most disadvantaged, thus ensuring their full integration in the democratic process. 21. The state of democracy presupposes freedom of opinion and expression; this right implies freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 22. The institutions and processes of democracy must accommodate the participation of all people in homogeneous as well as heterogeneous societies in order to safeguard diversity, pluralism and the right to be different in a climate of tolerance. 23. Democratic institutions and processes must also foster decentralised local and regional government and administration, which is a right and a necessity, and which makes it possible to broaden the base of public participation. Third Part – The International Dimension of Democracy 24. Democracy must also be recognised as an international principle, applicable to international organisations and to States in their international relations. The principle of international democracy does not only mean equal or fair representation of States; it also extends to the economic rights and duties of States.

27 Universal Declaration on Democracy

197

25. The principles of democracy must be applied to the international management of issues of global interest and the common heritage of humankind, in particular the human environment. 26. To preserve international democracy, States must ensure that their conduct conforms to international law, refrain from the use or threat of force and from any conduct that endangers or violates the sovereignty and political or territorial integrity of other States, and take steps to resolve their differences by peaceful means. 27. A democracy should support democratic principles in international relations. In that respect, democracies must refrain from undemocratic conduct, express solidarity with democratic governments and non-State actors like nongovernmental organisations which work for democracy and human rights, and extend solidarity to those who are victims of human rights violations at the hands of undemocratic régimes. In order to strengthen international criminal justice, democracies must reject impunity for international crimes and serious violations of fundamental human rights and support the establishment of a permanent international criminal court.

198

chapter D

28 Guidelines on the Rights and Duties of the Opposition in Parliament Unanimously adopted by the participants at the Parliamentary Seminar on Relations Between Majority and Minority Parties in African Parliaments, Libreville (Gabon), 17–19 May 1999 The representatives of African Parliaments meeting in Libreville from 17 to 19 May 1999 on the occasion of the Parliamentary Seminar on Relations Between Majority and Minority Parties in African Parliaments, organised by the  Inter-Parliamentary Union in co-operation with the United Nations Development Programme and at the invitation of the Parliament of Gabon, have drawn up the following guidelines for the rights and duties of the opposition in parliament. They express the hope that these guidelines, inspired by the general principles of democracy and human rights and by national practise and experience in the countries represented, can be completed on the occasion of other similar seminars in other parts of the world, so that the Inter-Parliamentary Union may work out a comprehensive international reference text on the opposition both inside and outside parliament. In this context, they ask that this document be brought to the attention of the Council of the InterParliamentary Union on the occasion of the Berlin Inter-Parliamentary Meetings (10–16 October 1999). Pending the adoption by the Inter-Parliamentary Union of a more complete document on the opposition in parliament, the seminar participants express the hope that States, and more particularly the African States, will draw inspiration, each according to its local realities, from the following guidelines to draft rules governing the functioning of their parliamentary assemblies. i Introduction 1. Enjoyment of democracy is a basic right of citizenship to be exercised under conditions of freedom, equality, trans-parency and responsibility, with due respect for the plurality of views, and in the interest of polity. It is founded on the right of everyone to take part in the management of public affairs.1* 2. Democracy is an inclusive process in which all citizens, men and women representing all political and social forces in the country, can take part. In the political context, this means that it must be possible for the opposition – i.e. those political parties or groups and individuals who do not form part of the * Universal Declaration on Democracy, Articles 1 and 11, Inter-Parliamentary Union, 1997.

28 Guidelines on the Rights and Duties of the Opposition

199

governmental majority – to participate in a meaningful manner in the democratic process. 3. The Inter-Parliamentary Union should consider developing a comprehensive statement, setting out the rights and duties of the opposition. This work should be based on established principles enshrined in the Universal Declara­ tion of Human Rights (United Nations, 1948), the International Covenant on Civil and Political Rights (United Nations, 1966), the Declaration on Criteria for Free and Fair Elections (Inter-Parliamentary Union, 1994) and the Universal Declaration on Democracy (Inter-Parliamentary Union, 1997) This latter document stipulates among other things that: – “Democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster economic and social development of the community, strengthen the cohesion of society and enhance national tranquillity, as well as create a climate that is favourable for international peace. As a form of government, democracy is the best way of achieving these objectives; it is also the only political system that has the capacity for self-correction.” (Article 3) – “The achievement of democracy presupposes a genuine partnership between men and women in the conduct of the affairs of society in which they work in equality and complementarity, drawing mutual enrichment from their differences.” (Article 4) – “A state of democracy ensures that the processes by which power is acceded to, wielded and alternates allow for free political competition and are the product of open, free and non-discriminatory participation by the people, exercised in accordance with the rule of law, in both letter and spirit.” (Article 5). “The key element in the exercise of democracy is the holding of free and fair elections at regular intervals enabling the people’s will to be expressed. (. . .)” (Article 12) – “Democracy is founded on the right of everyone to take part in the management of public affairs; it therefore requires the existence of representative institutions at all levels and, in particular, a Parliament in which all components of society are represented and which has the requisite powers and means to express the will of the people by legislating and overseeing government action.” (Article 11) – “Public life as a whole must be stamped by a sense of ethics and by transparency, and appropriate norms and procedures must be established to uphold them.” (Article 15) – “Individual participation in democratic processes and public life at all levels must be regulated fairly and impartially and must avoid any ­discrimination, as well as the risk of intimidation by State and non-State actors.” (Article 16)

200

chapter D

– “A sustained state of democracy requires a democratic climate and culture constantly nurtured and reinforced by education and other vehicles of culture and information. Hence, a democratic society must be committed to education in the broadest sense of the term, and more particularly civic education and the shaping of a responsible citizenry.” (Article 19) – “The state of democracy presupposes freedom of opinion and expression; this right implies freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Article 21) ii The Opposition in Parliament 4. Parliament is the institution that embodies society in the diversity of its composition and its opinions and which relays and channels this diversity in the political process. Its vocation is to regulate tensions and maintain equilibrium between the competing claims of diversity and uniformity, individuality and collectivity, in order to enhance social cohesion and solidarity. Its role is to legislate, inter alia by allocating financial resources, and oversee the action of the Executive. 5. Parliament must accommodate the participation of all people in homogeneous as well as heterogeneous societies in order to safeguard diversity, pluralism and the right to be different in a climate of tolerance. Hence the importance of political forces and individuals representing the opposition being able to participate in the work of the parliament. This will require recognition of and respect for human rights in general as well as for their specific rights and duties. 6. The opposition in parliament is a necessary and indispensable component of democracy. For it to be effective, however, the government and society at large must accept the essentials of parliamentary democracy. The primary function of the opposition is to offer a credible alternative to the majority in power. Moreover, by overseeing and criticising the action of the government, it works to ensure transparency, integrity and efficiency in the conduct of public affairs and to prevent abuses by the authorities and individuals, thereby ensuring the defence of the public interest. Indeed, the opposition contributes to the promotion and defence of human rights and fundamental freedoms, thus helping to ensure that democracy functions properly. iii The Rights of the Opposition in Parliament 7. Just like members of parliament who are part of the government majority, members of the opposition require full respect for basic rights. For example, they must all be able to enjoy the right to life and therefore, in their political activities, be shielded from any measure which would infringe upon their

28 Guidelines on the Rights and Duties of the Opposition

201

­ ersonal integrity or harm their property. If circumstances so require, the State p must provide them with personal protection on equal terms with the representatives of the majority. 8. Similarly, respect for freedom of expression and information is essential to members of parliament and particularly those who belong to the opposition to permit them to carry out their parliamentary duties. Representatives of the opposition must be able to denounce freely in Parliament and before public opinion the abuses which they have noticed or which have been brought to their attention by their constituents, and to act with a view to their remedy. The opposition must also enjoy fair access, on equal terms with the majority, to State media in order to disseminate its views, criticise the government’s action and propose alternatives to the government’s solutions. 9. While these (and other) essential rights are already enshrined in national laws, members of parliament, particularly those belonging to the opposition, need to benefit from additional prerogatives to enable them to work with the government majority as well as to monitor the action of the government and to criticise it whenever necessary. These are listed below and should be codified in an appropriate form through constitutional norms and/or parliamentary procedures. iii.1 Possibility for the Opposition in Parliament to Contribute to the Democratic Process on Equal Terms with the Majority – Parliament should be consulted by the government on important questions involving the life of the nation: threat of civil war, risk of foreign invasion or war, military interventions abroad, etc. This will enable the opposition to take part in the debate and provide its input to the decision-making process. The opposition must also be able to raise matters regarding the Constitution with a view to its amendment. – The opposition shall be entitled to criticise any dysfunctioning of the courts or the Executive. It shall be entitled to inquire about presumed human rights violations and to call for remedial action. iii.2

Organisation of Parliamentary Work – When setting up the governing body of Parliament (Board), an effort must  be made to reflect the political composition of the assembly. If there are vice-presidents, a fair share of these posts must be set aside for opposition mps who, in alternation with majority mps, shall preside over the assembly’s sittings. – Political (parliamentary) groups may be formed freely, subject to the minimum number of members for each group as established by law. Each parliamentary group, from the majority and the opposition alike, shall

202

chapter D

have funds allocated to it enabling it to recruit its own staff and shall be entitled to the use of premises for meetings in the Parliament. – The opposition shall be entitled to be represented, proportionate to its numbers, on each parliamentary committee and sub-committee. – The opposition shall be entitled to a number of standing committee chairmanships proportionate to its numbers. The chairmanship of the committee responsible for budgetary matters shall go ex officio to the ­opposition. – The opposition must be represented in any select committee competent to exercise oversight over secret activities, regard-less of their nature. iii.3

Functioning of Parliament – In order to ensure equality of treatment between members of the governing majority and opposition parties, the Speaker (Presiding Officer) of Parliament must be impartial in exercising his or her functions. – All parliamentarians, from the majority and the opposition alike, are equally entitled to receive in a timely manner the same information from the government, except on internal party matters. – Equally, all parliamentarians from the majority and the opposition should receive information upon request from a specific information and research service set up within parliament to this effect. – All parliamentarians shall be equally entitled to submit bills and amendments. – All parliamentarians shall be equally entitled to put written and oral questions to the members of the government and to receive answers to these questions. The opposition shall be entitled to speaking time proportionate to its numbers in sittings set aside for oral questions. – The agenda for a predefined number of sittings during the parliamentary sessions shall ex officio be chosen freely by the assembly itself. In the assembly, the decision shall lie ex officio with each parliamentary group, on a rotating basis. – Each parliamentary group shall be entitled, at intervals fixed following consultations, to have a commission of inquiry established on the subject of its choice. In this case, the opposition shall be represented thereon. – The opposition shall be empowered to seize, if it exists, the judicial body entrusted with determining the constitutionality of laws.

iii.4

Material Resources – When State funding is possible, the opposition should benefit therefrom on a fair and non-discriminatory basis vis-à-vis the majority.

28 Guidelines on the Rights and Duties of the Opposition

203

– The opposition shall be entitled to equal access to the material and technical resources and other facilities made available to parliament for the accomplishment of its missions. iii.5

Parliamentary Privileges and Immunities – Parliamentary privileges must be clearly defined and established by law. By guaranteeing parliamentarians absolute protection from prosecution for all acts carried out as part of their parliamentary function and for all words spoken and votes cast in parliament, it permits mps – from the majority and the opposition alike – to fulfil the mandate entrusted to them by their constituents without fear of any retaliatory measures on account of their positions. - If the parliamentary system in force so provides, parliamentary immunities must also be clearly established by law. These immunities are not meant to place Members of Parliament above the law, but to protect them from possible groundless proceedings or accusations that may be politically motivated. The grounds and terms for lifting of immunity must be clearly specified by law so that this may only occur following a decision taken by the competent body on a non-partisan basis.

iv Duties of the Opposition 10. The opposition in parliament has a duty to offer voters a credible alternative to the government in office to make the majority accountable. To be a credible alternative, however, the opposition must also be ready to exercise the responsibilities to which it aspires on a lasting basis. In other words, it must have a programme which it is ready to implement. In democracy, political life is enriched by free competition of political programmes; it is impoverished by rivalry based on personal ambitions which merely disqualifies it in the eyes of public opinion. 11. Moreover, the opposition in parliament must show itself to be responsible and be able to act in a statesmanlike manner. It must engage in constructive and responsible opposition by making counter-proposals. In its action, the opposition must not seek to hinder pointlessly the action of the government but rather endeavour to encourage it to improve such action in the general interest. 12. The duties of the opposition are by their very nature defined by political and behavioural rules; not by constitutional norms or parliamentary texts. The duties therefore do not require codification. What is required is for the members of the opposition – like all Members of Parliament – to exercise their responsibilities with due respect for the Constitution and the laws in force. They must, of course, refrain from advocating violence as a means of political expression. Indeed, their action must be in keeping with a spirit of mutual tolerance and a quest for dialogue and concerted action.

204

chapter D

29 The Prevention of Military and Other Coups against Democratically Elected Governments and against the Free Will of the Peoples Expressed through Direct Suffrage, and Action to Address Grave Violations of the Human Rights of Parliamentarians Resolution adopted by consensus by the Inter-Parliamentary Conference, Jakarta (Indonesia), 20 October 2000 (104th session) The 104th Inter-Parliamentary Conference, Reaffirming that the maintenance of constitutional democracy is of fundamental importance to the human rights of peoples, in particular their right to be governed by representatives that they have elected freely, Noting that military and other coercive means of removing democratically elected governments strike at the very heart both of these rights and of the principles of the Inter-Parliamentary Union, and must be condemned, Emphasising that the Inter-Parliamentary Union has been an active advocate of parliamentary democracy, and recalling that the Inter-Parliamentary Council adopted a Universal Declaration on Democracy in Cairo in 1997 and a Declaration on Criteria for Free and Fair Elections in Paris in 1994, and that these supplemented the principles of many international instruments, including the Universal Declaration of Human Rights, Convinced that a parliament elected freely and fairly is the best guarantee of human dignity and the prosperity of citizens, Further convinced that for an open democratic system to function properly, the right to vote and to stand for election, the right to form associations and parties, the right of free speech and equitable access to the media, and the right to assemble and demonstrate peacefully are essential, Recognising that one of the essential means of preventing threats to democracy is to ensure the full participation of all sectors of society, including women, minorities and vulnerable groups, in democratic processes, Further recognising the need to ensure the restoration of democracy in countries where the legitimate government has been overthrown and urging authoritarian regimes to carry out the necessary political transformation, Stressing that the Inter-Parliamentary Union should play a leading role in the prevention of coups and should call on Governments to strengthen democracy, to promote human rights and to support dialogue and negotiation in the settlement of internal disputes as a way of addressing the cause of divisions that lead to attempts to overthrow democratic governments, Emphasising that no comfort or encouragement should be given to those involved in the undemocratic overthrow of governments, and recognising the

29 PREVENTION OF COUPS AGAINST ELECTED GOVERNMENTS

205

need for the international isolation of such regimes by means of effective ­sanctions and other appropriate practical measures, and the restoration of legitimate, democratically elected governments, Reasserting that the rights of parliamentarians must be protected if they are to protect and promote human rights and fundamental freedoms in their respective countries, and acknowledging in this regard the successful work undertaken by the ipu Committee on the Human Rights of Parliamentarians, Condemnation 1. Strongly condemns all attempts, successful or otherwise, to overthrow democratically elected governments by military or other undemocratic means; 2. Vigorously condemns all individuals who abuse the human rights of parliamentarians and other citizens in the course of their involvement in military and other coups; 3. Urges all parliaments to exhort their respective governments to bring about the international isolation of regimes which come to power through the undemocratic overthrow of elected governments, by considering the application of effective sanctions and other practical measures; 4. Calls on all parliaments to adopt, where feasible, new legislation and/or constitutional amendments strictly to enforce appropriate punishment for individuals involved in the undemocratic overthrow of elected governments, particularly when violence is used and to ensure to that end that the punishment of such acts may be neither quashed nor subject to a statute of limitations; Prevention 5. Further calls on parliaments to urge governments to direct the international and regional organisations to which they belong to promote a culture of democracy, good governance and democratic rights of citizens; 6. Urges all parliaments and governments to rise above any differences that may exist between ruling and opposition parties and to unite in resisting all attempts and actions aimed at destroying the system of parliamentary democracy by force of arms or other forcible measures; 7. Stresses the important and vital role of education in the formation of a ­democratic culture of peace and non-violence; 8. Urges all parliaments and governments to ensure the full and equitable participation of all sectors of society, including women, minorities and vulnerable groups, in democratic and democratisation processes; 9. Further urges all parliaments and governments to ensure that bodies responsible for security, particularly the security forces, are accountable both to

206

chapter D

elected civil authorities and to civil society, and that they operate in accordance with the rule of national and international law; 10. Recommends that all States strengthen democracy, promote human rights as well as human security and favour dialogue and negotiation in the settlement of internal disputes as a way of addressing the cause of divisions that lead to attempts to overthrow democratic governments; Action by the Inter-Parliamentary Union 11. Commends the Committee on the Human Rights of Parliamentarians for its invaluable work in defending the human rights of members of parliament, and calls on all member parliaments actively to support its work, particularly through appropriate follow-up action on individual cases of human rights violations suffered by fellow parliamentarians which the Committee examines under its public procedure; 12. Urges the ipu to play a special role through the use of the Internet (­electronic mail, Web sites) and other cost-effective yet persuasive modes of mass communication, to provide a venue that encourages the early reporting of human rights violations so that parliamentarians can take swift action to protect the rights of parliamentarians and other citizens around the world; 13. Requests the Secretary General of the ipu to examine the feasibility of establishing a mechanism for monitoring and denouncing violations of human rights and civil liberties, and subsequently to report to the governing bodies of the ipu at their next session.

30 Parliament’s Role in Strengthening Democratic Institutions 207

30 Parliament’s Role in Strengthening Democratic Institutions and Human Development in a Fragmented World Resolution adopted unanimously by the Inter-Parliamentary Conference, Santiago (Chile), 11 April 2003 (108th session) The 108th Inter-Parliamentary Conference, Reaffirming the principles enshrined in the ipu’s “Universal Declaration on Democracy” adopted by the Inter-Parliamentary Council at its 161st session (September 1997, Cairo), Recalling the Declaration of Presiding Officers of National Parliaments ­entitled “The Parliamentary Vision for International Cooperation at the Dawn of the Third Millennium”, adopted on 1 September 2000, Recalling also the United Nations Millennium Declaration of 8 September 2000 which sets out the Millennium Development Goals as internationally agreed targets for poverty eradication, and the United Nations Development Programme (undp) Human Development Report 2002, Reaffirming that democracy is both an ideal to be pursued and a mode of government to be applied according to modalities which reflect the diversity of experiences and cultural particularities without derogating from internationally recognised principles and norms and that it is thus a constantly perfected and always perfectible state or condition whose progress will depend upon a variety of political, social, economic and cultural factors, Acknowledging that national parliaments represent the basis for good ­governance grounded on democratic institutions responsive to the needs of the people, the rule of law, anti-corruption measures, gender equality and a favourable atmosphere and environment for investment, Recognising that parliamentary institutions make an indispensable contribution to the achievement of meaningful democratic control and ­ accountability through their scrutiny of the activities of governments, by: – Relying on their constitutional authority to authorise, among other government legislative initiatives, the revenue-raising and spending measures of governments as a means of ensuring their cooperation, – Conducting substantive scrutiny using a variety of practices that are specific to individual jurisdictions, including oral question periods and the entitlement to address written questions to ministers, committee hearings and other practices that support financial scrutiny, – Providing citizens, both directly and through the mass media, with the information needed to hold governments accountable and to contribute constructively to the processes used to produce policy and legisla-

208

chapter D

tion relating to democratisation and human development, both at home and abroad, Emphasising the central role of democratic institutions in ensuring successful long-term human development, by: – Using effective electoral, parliamentary and other mechanisms to create the conditions for ensuring that governments are responsive to the needs and interests of the governed, – Ensuring that governments maintain the levels of popular legitimacy required both for effective governmental action with respect to human development and other issues, and for the civil order that is a precondition for effective governance, Stressing the important role of parliaments as legitimate representatives of the people in strengthening democratisation in multilateral institutions and furthering human development, Convinced that respect for human rights is not only a fundamental value in itself but also essential to developing stable, democratic and prosperous societies that are capable of living together in peace, Recognising that education is a key to human development, and acknowledging that parliaments have a vital responsibility to guarantee free universal education without any discrimination whatsoever, as this hastens the pace of economic, social and political development and fosters cultural and spiritual advancement, Noting that countries that have developed effective macroeconomic policies, established robust public institutions, maintained domestic political stability and strengthened the rule of law, supported by investments in people through better health and education, have generally achieved strong economic growth and made progress towards poverty reduction, Convinced that the side-effects of globalisation and certain policies are, in some cases, inconsistent with the very concept of human development, and stressing the need for developing countries to realise that any progress, whether economic or social, is contingent upon their ability to create the necessary national will to face the challenges imposed on them by the new global system, Stressing that persistent extreme poverty deprives citizens of full and effective enjoyment of human rights and of participation in democratic processes in each society, Concerned that efforts to build strong democratic institutions while working towards sustainable human development encounter numerous challenges, such as poverty, corruption, globalisation, lack of resources, discrimination, transnational crime, civil strife, environmental degradation and overpopulation, Expressing concern at the growth of terrorism, which poses a serious threat to democratic institutions, and its repercussions on human development,

30 Parliament’s Role in Strengthening Democratic Institutions 209

Also expressing concern at the growing divide between rich and poor countries, Emphasising the need to grant debt relief to the poor countries, address the causes of debt and take measures to ensure that indebtedness does not recur, Stressing the need to redouble efforts to combat hiv/aids, Recognising that volunteerism builds strong cohesive communities, encourages participation in the democratic process and reduces social tensions by forging a common view, 1. Urges governments and parliaments to acknowledge their collective responsibility to uphold the principles of human dignity, equality and equity at the global level; 2. Calls on all the parliaments in the world to work for democracy based on the freely expressed will of the people through free and fair elections to choose their own political, economic, social and cultural systems and participate fully in every sphere of their lives and, in this context, to affirm the universal need to promote and protect human rights and fundamental freedoms at the national and international levels; 3. Calls on governments to promote the participation of all sections of society, in particular women, the disadvantaged and minorities, in the decision-making process; 4. Urges the governments and parliaments of all countries to foster participation by their citizens in political decision-making, shielded from undue interference from institutionalised pressure groups, by creating, through democratic means, decentralised representative institutions vested with real power and endowed with adequate financial resources, and instituting channels for this purpose that are consistent with the spirit of their Constitution and traditions; 5. Stresses the need to reinforce cooperation between the United Nations and its organs and agencies and national parliaments with a view to furthering peace, security and development, abiding strictly by the principles of human dignity and equity; 6. Urges all States and multilateral institutions, including the ipu, to continue providing practical support to strengthen political structures such as parliaments and their committees, local governments, electoral commissions and political parties and to uphold democratic processes, and particularly free ­elections, so that these essential political systems operate with sufficient ­power, responsibility and authority to reflect the interests of the people as a  whole; in this regard, encourages the ipu and the undp to pursue their cooperation in strengthening parliamentary institutions, and in implementing a strategic partnership within their respective development agendas; 7. Stresses the need for parliaments to submit regular reports on the state of democracy and human development in the world, to serve as working and ­consultative papers for the drafting of national policy;

210

chapter D

8. Encourages all States to ratify and implement the international human rights instruments in their widest possible sense, which constitute the basis of democracy; 9. Urges the United Nations to extend the 1965 Convention on the Elimination of All Forms of Racial Discrimination to cover any form of political activity that derives from hate and violence; 10. Recommends the development of the natural function of parliament as the mediator between the public and international organisations and institutions, and parliament’s systematic rapprochement with the ngos that play a major role within civil society; 11. Requests the ipu Secretary General to arrange for the ipu to make a substantive contribution, including the circulation of a document on the ipu and democracy, to the 5th International Conference of New or Restored Democracies in June 2003 in Ulaanbaatar (Mongolia); 12. Stresses the urgent need to reform existing multilateral institutions by promoting democratic principles to ensure that their policies and programmes meet the interests of and benefit all nations; and reaffirms that the United Nations is the only legitimate multilateral institution responsible for world peace and security and must perform its role and functions in compliance with the principles of international law and its Charter; 13. Urges parliaments around the world to make maximum use of existing processes for exerting legislative influence, financial control, scrutiny and accountability in support of a global democratisation and human development agenda, and to experiment with special debates, public consultations, committee studies and other initiatives designed to mobilise governments and world public opinion in favour of democratic institutions and human development; 14. Encourages parliaments to develop parliamentary diplomacy activities and to strengthen bilateral and multilateral cooperation; 15. Urges parliaments, in this regard, to devote ever closer attention to international issues and particularly to development financing, debt, poverty reduction, human rights, gender equality, the rights of the child, and the right to education, and to routinely take account of this dimension when legislating; 16. Also urges parliaments to put into place the necessary structures to monitor and oversee the international negotiations conducted by governments, particularly when they need to be subsequently enacted into legislation; 17. Requests governments to ensure that all useful information relating to such negotiations is submitted to parliament, both in the negotiation phase and when implementing decisions, encompassing all texts, including those which do not require enactment into domestic law; 18. Emphasises the central role of the Inter-Parliamentary Union, as the world organisation of parliaments, in making a key contribution to strengthening

30 Parliament’s Role in Strengthening Democratic Institutions

211

democracy in its relations with international institutions and to keeping world peace; 19. Acknowledges that, to achieve peace and security through social and economic stability, international institutions must offer the countries of the world the aid required to ensure reasonable standards of living, in contrast to the present disparities between rich and poor countries; 20. Underscores the importance of establishing an international and regional strategy for human development focused on attaining sustainable economic growth and combating poverty, and of supporting and expanding integrationpromoting institutions through national political participation in policy formulation and legislative decision-making, with continuous re-evaluation; 21. Requests all parliaments to urge their governments to adopt measures to effectively enable them to honour the undertaking made by all the United Nations Member States in the Millennium Declaration, and to work jointly to establish more egalitarian processes in which all citizens in every country can participate; 22. Also requests all countries to make a firm pledge to human development and take all appropriate measures to increase current social expenditure a­ llocated in their budgets for human development; 23. Calls on the parliaments of the developed countries to work towards the goal of earmarking at least 0.7 per cent of gnp as Official Development Assistance for global human development; 24. Further calls on all parliaments and parliamentarians to enact not only measures that focus on facilitating economic growth, but more particularly those that empower people and promote their welfare and development; 25. Endorses the Brussels Declaration, and the Programme of Action for the Least Developed Countries for the Decade 2001–2010, adopted by the United Nations General Assembly in its resolution 55/279 of 12 July 2001, and emphasises, in particular, the need for the effective implementation of Commitment 2 of the Programme relating to good governance at the national and international levels, and of Commitment 7 relating to necessary implementation of the Programme at the national level; 26. Requests the ipu to devote special attention to the ldcs in its programmes and activities focusing on the areas of good governance at the national and international levels, and also requests parliaments to play a supportive role in ensuring the effective implementation of the Brussels Programme of Action at the national level; 27. Strongly endorses the resolution adopted by the ipu Council at its 168th session on 7 April 2001, expressing support for volunteerism and encouraging closer cooperation between the ipu and the United Nations Volunteers in this regard.

212

chapter D

31 Bridging the Democracy Gap in International Relations: A Stronger Role for Parliaments1 Unanimously adopted by the Second World Conference of Speakers of Parliament, United Nations Headquarters, New York (usa), 7 to 9 September 2005 Parliament embodies democracy. Parliament is the central institution through which the will of the people is expressed, laws are passed and government is held to account. On the eve of the High-Level Meeting of Heads of State and Government, we, the Speakers of the world’s parliaments, have met at United Nations Headquarters in New York. We have convened to express the views of peoples’ representatives in parliament, take stock of action effected by parliaments since our first Conference in 2000, examine how we can provide more support for international cooperation and the United Nations, and thus help bridge the democracy gap in international relations. […] Parliaments and the United Nations We reaffirm the Declaration of the first Conference of Speakers of Parliaments (2000) in which we called on all parliaments and their world organization – the Inter-Parliamentary Union (ipu) – to provide a parliamentary dimension to international cooperation. We welcome the progress that has been made by many parliaments to achieve this objective, as evidenced by the ipu Report on parliamentary involvement in international affairs. At the same time, we recognize that much remains to be done. We welcome the United Nations decision to grant observer status to the ipu. This is a first step that opens channels for the Organization to convey the views of the parliamentary community to the United Nations. The time has come for a strategic partnership between the two institutions. We would greatly welcome more substantive interaction and coordination with the United Nations, and call upon the world body to resort more frequently to the political and technical expertise which the ipu together with its Member Parliaments can provide, particularly in areas relating to post-conflict institution building. We emphasize that parliaments must be active in international affairs not only through inter-parliamentary cooperation and parliamentary diplomacy, but also by contributing to and monitoring international negotiations, overseeing the enforcement of what is adopted by governments, and ensuring national 1 The delegation of Sudan expressed a reservation on preambular paragraph 17. The delegation of Algeria expressed a reservation on operative paragraph 9.

31 Bridging the Democracy Gap in International Relations

213

c­ ompliance with international norms and the rule of law. Similarly, parliament must be more vigilant in scrutinizing the activities of international organizations and providing input into their deliberations. We therefore welcome the current debate on how best to establish more meaningful and structured interaction between the United Nations and national parliaments. We reaffirm the recommendations relating to this subject that were contained in our Declaration of the year 2000, and assert that much of this interaction must be firmly rooted in the daily work of our national parliaments. At the international level, we propose to work ever more closely with the ipu, which we consider to be a unique global parliamentary counterpart of the United Nations. To this end, we encourage the ipu to ensure that national parliaments are better informed on the activities of the United Nations. Moreover, we invite the ipu to avail itself more frequently of the expertise of members of standing and select committees of national parliaments in dealing with specific issues requiring international cooperation. We also encourage the ipu to develop further parliamentary hearings and specialized meetings at the United Nations, and to cooperate more closely with official regional parliamentary assemblies and organizations, with a view to enhancing coherence and efficiency in global and inter-regional parliamentary cooperation. The ipu is the primary vehicle for strengthening parliaments worldwide, and thus promoting democracy, and we pledge to further consolidate it. We welcome the ipu’s report on Parliaments’ contribution to democracy. We intend to reinforce the ipu human rights machinery so that the world’s 40,000 parliamentarians can do the job they were elected to do in greater freedom and safety. We will also continue to support ipu efforts to see that both genders are represented within the ranks of parliamentarians in a more equitable way, and to take action where necessary. In all of these ways, we will increase the capacity of our parliaments to bring their influence to bear on the work of the United Nations, enhance the transparency and accountability of that world Organization and thus provide an impetus to the reforms under way at the United Nations. […]

214

chapter D

32 The Importance of Civil Society and its Interplay with Parliaments and other Democratically Elected Assemblies for the Maturing and Development of Democracy Resolution adopted unanimously by the Inter-Parliamentary Assembly, Geneva (Switzerland), 19 October 2005 (113th session) The 113th Assembly of the Inter-Parliamentary Union, Recognizing that a sincere and active commitment to interplay between civil society and parliaments and other democratically elected assemblies is a long-term political investment that, if properly managed, will contribute to ensuring peace, justice and prosperity, increase civic participation, and enhance the effectiveness of representative institutions and the legitimacy of governments, Underscoring the close link between democracy and civil society, as well as the role of the latter in developing and strengthening democracy, and in introducing change required for development processes, Aware that among democratic institutions parliament is a privileged forum for a transparent and free dialogue with the different forms of civil society, Acknowledging that there will always be an essential difference between positive and constructive interplay, and relations that are or become confrontational, manipulative or inspired by hidden motives, Noting that the articulation of this interplay must take into account both national and international dimensions, and with this the need for States to be committed not only to ensuring but also to promoting ongoing collaboration with civil society, with the aim of developing and consolidating democracy, and recognizing that the dynamic links between the maturing of democracy as a political process and its participatory nature can be strengthened by such interplay, Recognizing the importance of building the capacity of citizens through education, as human and social capital are the driving forces and key elements in the democratization process, and are as important as financial and physical capital, Acknowledging that parliaments around the world have a responsibility to provide a foundation for people-oriented social and economic policies which enhance bonds of trust, mutual confidence and reciprocity among citizens, and ensure appropriate, transparent and legally verifiable funding, whose sole objective should be the promotion of democracy and not the subversion of legitimately constituted governments,

32 THE IMPORTANCE OF CIVIL SOCIETY FOR DEMOCRACY

215

Reaffirming the ipu’s Universal Declaration on Democracy adopted at the 161st Session of the Inter-Parliamentary Council (Cairo, September 1997) and the Resolution entitled Ensuring lasting democracy by forging close links between Parliament and people, adopted at the 98th Inter-Parliamentary Conference (Cairo, September 1997), Recalling the Beijing Declaration and Platform for Action, which encouraged governments to take measures to ensure women’s full participation in power structures and decision-making and to increase women’s capacity to participate in decision-making and leadership, and in this connection acknowledging the important contribution to the development of participatory democracy that women’s popular movements such as non-governmental organizations (ngos) make at the local and international levels, Convinced that an enabling environment for civil society, ensured through legal provisions that guarantee the basic freedoms of assembly, association and expression in accordance with the Universal Declaration of Human Rights and other international and regional covenants and conventions, should  be the cornerstone and basis of interplay between parliaments and civil society, Stressing the need to establish a balanced partnership between the State and civil society that ensures transparency and accountability and the right of governments to enact laws governing the activities of civil society organizations, Underlining the grass-roots-based and voluntary aspect of civil society, and noting the great differences in the structure of civil society in the various regions, Stressing the fact that civil society is currently developing into a major global, social and economic force, and that its activities cover a very wide field, such as social services, education, health, human rights, communication and information, Emphasizing the need to preserve the independence of civil society organizations and the importance of preventing them from being co-opted by foreign interests to advance illegal agendas, Recognizing the importance of creative interplay between parliaments and civil society, especially in bridging gaps between various local groups and government bodies, public sector organizations, private business enterprises and the public, Affirming that the financial relationships between civil society organizations and governments must be structured to provide needed support while avoiding co-optive pressures or the breakdown of ties between organizations and their constituencies that could compromise the independence and diversity of civil society organizations,

216

chapter D

Conscious of forces that can undermine democracy by suppressing or manipulating civil society and that may emanate from intolerant governments or ideologies, Conscious that poverty, unemployment, corruption and lack of opportunity limit the freedom of citizens, thus undermining the democratic system as a whole by inhibiting the integration of social organizations that foster democratic rights, 1. Asserts that the articulation of the interplay between civil society and parliaments and other democratically elected assemblies will not only contribute to the eradication of poverty, but also empower even the poorest of the poor to engage in general democratic life in their respective countries and, in so doing, will enhance the richness and credibility of political representation and strengthen the legitimacy of democratic institutions and processes, and in this connection, calls upon parliaments to assist the efforts of ngos to intensify the fight against poverty, so that all people have practical opportunities to participate in the development of civil society; 2. Emphasizes that only the full affirmation of political and social pluralism can ensure for all citizens the enjoyment of fundamental rights and freedoms; 3. Calls upon all parliaments and governments to promote constructive interplay with their respective civil societies, with a view to optimizing the ­participatory character of their democracies, inter alia through the effective use of information technology and by bridging the digital divide between regions, and through the involvement of civil society organizations in gendersensitive budgeting processes; 4. Calls upon the world’s parliamentarians to initiate and implement projects to facilitate public participation and education for youth, women and men, thereby training civil society in the operations and functions of legislatures and in the importance of civic participation in sustaining democracies; 5. Invites parliaments and the ipu to set up mechanisms for the exchange of information, experience and best practices on the implementation and results of such projects; 6. Further calls upon parliaments to put forward flexible social policies pursuant to prevailing national laws, and to adopt legislation to promote civil society interactions and make it easier for voluntary organizations to register or to be incorporated, while at the same time guaranteeing the independence and ­diversity of ngos, and ensuring that civil society organizations, whose support stems from ideologies based on fundamentalism and intolerance, are not encouraged; 7. Also calls upon parliaments to regularly review legislation relating to civil society organizations in order to guarantee their right to be registered and incorporated as legally independent entities;

32 THE IMPORTANCE OF CIVIL SOCIETY FOR DEMOCRACY

217

8. Emphasizes that fair funding of civil society is necessary to consolidate democracies, and that this need gives both the public and private sectors a great opportunity to contribute by collaborating with civil society in ways that do not create co-optive pressures or erode the ties between such organizations and those they represent, and thus to sustain the independence and diversity of civil society organizations; 9. Urges all States to protect not only old, well-established organizations, but also new, democratic movements and associations in the most marginalized neighbourhoods and villages, and to support the struggle for tolerance and coexistence in those environments; 10. Strongly urges parliaments to support and where necessary enhance all constructive channels of political expression, the promotion of human rights and investment in human capital, through legislation, policies and regulations that promote civil society; 11. Reiterates that transparency and accountability are vital to civil society and that the establishment of mechanisms for control and self-discipline, and also of national and international codes of conduct, can bring about great improvements in this regard; 12. Calls upon parliaments to enact legislation and, in cooperation with civil society, to adopt all measures incumbent upon them in order to counter corruption, which poses an internal threat to democracy, and to promote discussions on anti-corruption measures, including through negotiations related to the United Nations Convention against Corruption; 13. Urges parliaments to promote conditions for the representatives of the corporate sector and ngos to engage in a policy dialogue aimed at exploring avenues of increased collaboration, especially with regard to long-term commitments in areas such as the pursuit of the Millennium Development Goals, environmental protection and debt relief, and also aimed at identifying and removing impediments preventing ngos from participating in and contributing to various fields of development; 14. Invites parliaments and governments to support, consistent with the national policies, the role played by civil society organizations in job creation  and economic development, and to draw upon their expertise in this field; 15. Urges parliaments and governments to encourage the development and strengthening of civil society by providing the necessary support, training and technical assistance, and by organizing open hearings and other activities that promote a permanent dialogue with civil society; 16. Invites parliaments to create ongoing contacts with ngos, including those that represent marginalized groups, with a view to encouraging a greater level

218

chapter D

of popular advocacy in political life, providing (and encouraging ngos to seek from governments) systematic responses to advocacy, including both actions taken and clear explanations of inaction, so as to strengthen incentives for participation, and educating their constituents about the importance of civic participation at all levels; 17. Calls upon parliaments to adopt rules and procedures capable of ensuring an effective dialogue with civil society in the performance of parliamentary functions; 18. Stresses the importance of parliamentarians’ developing direct contacts with civil society actors and citizens in general, both at the electoral district level, by establishing a parliamentary presence there where constituents can be received, and at the national or international level, by using information and communications technologies, for example; 19. Recommends that the ipu develop closer links with civil society and project itself as a global actor in the promotion of civil society by adopting a new comprehensive media strategy to make the Union better-known to the general public; 20. Urges parliaments to encourage active interaction among civil society groups through the sharing of experiences and exchange of views, to ensure best practices; 21. Invites parliaments to design, jointly with their governments, programmes that promote the teaching of democratic values such as freedom, equality before the law, and freedom of association, and emphasizes that these values are best defended and respected in an organized and well-informed society; 22. Invites parliaments and governments to ensure that legislation is worded in a manner that is clear and comprehensible for the citizen, and to ensure also that citizens and civil society actors are aware of their legal and constitutional rights and their responsibilities in the democratic process; 23. Encourages parliaments to ensure that their relations with the media and their information and communication policies for civil society and the public in general are development-focused, transparent and based on truth as well as mutual respect and the best interests of society.

33 Securing Global Democratic Accountability

219

33 Securing Global Democratic Accountability for the Common Good1* Declaration adopted by the 3rd World Conference of Speakers of Parliament, United Nations, Geneva (Switzerland), 19 to 21 July 2010 (1) Accountability and representation lie at the heart of democracy. Parliament is the central institution of any democracy through which the will of the people is expressed, laws are passed and government is held to account. We, the Speakers of the world’s parliaments, have convened at the United Nations in Geneva to discuss how our parliaments can help secure democratic accountability worldwide for the common good. […] A Parliaments and Democracy (6) Our parliaments are national institutions, marked by the history and ­cultural heritage of each of our countries. We are proud of our sovereign independence which it is our right, duty and wish to defend. (7) We recognize that democratization is a continuing process for all parliaments and that it is necessary to promote sound democratic practices within our parliaments, whether they are recently established or have been in existence for centuries. We are committed to assisting each other in this effort, with the stronger institutions providing assistance to the weaker ones, with increased sharing of good practices for the greater benefit of all, and with a constant concern for the fuller participation of our citizens in national and global governance in the interests of the common good. (8) As a collegiate body of the world’s parliaments, we rely on the collective experience and wisdom of our members. Together we pledge to make our ­parliaments more representative, transparent, accessible, accountable and effective, enabling the diverse components of society to participate in politics.  We will also promote standards of integrity for parliaments and their ­members, recognizing that membership of parliament is first and foremost a public service, and will uphold the highest standards of ethics and integrity in public life. (9) Democracy is founded on the rule of law and respect for human rights, which are based on the precept that nothing must infringe upon human ­dignity. We reaffirm the need to ensure the equal rights and opportunities of * See Article 21 of the Universal Declaration of Human Rights.

220

chapter D

men and women, thus promoting a genuine partnership between them in all spheres. We pledge to help promote a climate of tolerance and to safeguard diversity, pluralism and the right to be different, which also implies protecting the rights of persons belonging to minority and indigenous groups. (10) We emphatically state that the proportion of women in parliament today is not sufficient and we pledge to redouble our efforts to reach, as a global average, the internationally agreed target of thirty per cent of women in parliaments by 2015. We undertake to combat all forms of discrimination against women which prevent them from realizing their aspirations to greater involvement in public life. (11) We emphasize the importance of encouraging our youth to invest their energy, enthusiasm and creativity in the advancement of our societies and the promotion of mutual understanding. We urge our parliaments to address the concerns and aspirations of youth and encourage the participation of young people in public life. (12) We are preoccupied by a widely held perception of politics as a closed space where there is little room for opposing opinions and consideration of alternative policies. We will do all we can to ensure that the rights of all members of parliament are guaranteed; they must be free to speak out without fear of harassment or punishment, even when they do not toe the party line. Equally, we are committed to fostering political tolerance among citizens and political leaders through education and communication. (13) Defending our parliaments also means that we will be outspoken in our condemnation when parliaments are dissolved in breach of the national constitution or when members of parliament are arbitrarily deprived of their mandate or otherwise have their human rights violated. We have seen a number of instances of this in recent times. We condemn the usurpation of political power by force and the persecution of elected representatives of the people. B Parliaments on the International Stage (14) We believe that, in all likelihood, the world will continue to be confronted by crises that will pose tremendous challenges to the prevailing order. Such crises, however, if they are managed democratically, can provide a springboard for vital and regenerative change. (15) We are concerned that this is not generally the case at present. The democracy gap persists. Many would say it is widening. Those who have never had a voice in domestic or global affairs remain marginalized or excluded altogether.

33 Securing Global Democratic Accountability

221

(16) While the recent convulsions that began with a financial crisis are diminishing, millions continue to suffer from the aftershocks. For untold numbers of people, especially in the developing countries, the challenges of daily survival have worsened. The suffering will endure and, if nothing is done, go largely ignored or unnoticed. We remain convinced that one vital way to bridge the growing gap between those who have the means to live comfortable lives and those who are wholly dispossessed is to make multilateral institutions more democratic and representative, and establish more participatory practices at the international level. (17) The time has come for an imaginative leap of faith. Today’s multilateral systems should allow for much greater consideration for the thoughts, feelings and aspirations of people everywhere whose voices go unheard. (18) We therefore call once again for greater parliamentary involvement in international cooperation and we reiterate the recommendations we have made at our past two conferences. We emphasize that our parliaments must be more active in international affairs by contributing to and monitoring international negotiations, by overseeing the enforcement of agreements that have been reached by governments and, more generally, by ensuring national compliance with international norms and the rule of law. (19) Building political will and public support and ensuring national ownership and effective implementation of international agreements can only come about if parliaments and their members are well informed and actively engaged, both nationally and internationally, throughout the consultation and negotiating process. We are committed to strengthening our capacity to assume this role, without prejudice to the separation of powers, and we call on our governments to work with us to this effect. Wherever possible, we intend to ensure that parliamentarians are included in national delegations to major United Nations meetings and multilateral negotiating fora. (20) Our involvement in international cooperation must be firmly rooted in the daily work of our parliaments, much of which relates to ensuring accountability. It is therefore essential that our parliaments play an important role in overseeing the implementation of governmental programs to address major challenges, such as poverty, access to water, climate change, food and energy security. (21) We acknowledge the growing significance of regional and sub-regional parliaments and their contribution to international cooperation. We reiterate our earlier calls on the ipu to cooperate more closely with these institutions with a view to enhancing coherence and efficiency in global and interregional parliamentary cooperation.

222

chapter D

C The United Nations […] (26) In this, as in so many other areas, we all stand to gain from building a closer and more powerful relationship between parliaments and the United Nations. The Millennium Development Goals will not be met without a strong sense of accountability accompanying all efforts. Democracy, security, ­development, human rights and gender equality are inextricably linked. Our parliaments can do more to ensure that development goals are taken into account in our daily work and translated into national programs and laws. Likewise, we encourage our parliaments, when they examine draft budgets and bills, to assess their impact on the fulfillment of the Goals. We pledge to support these efforts, monitor progress closely and do our part in meeting the targets by 2015. (27) We recognize that much has already been achieved by the United Nations. Looking back to our first summit in 2000, we see ten years of encouraging progress. Our parliaments have gained from an awakening within the United Nations to our crucial role in providing the legislative foundations for development and in strengthening the rule of law which is essential to development. Recent summit outcomes have acknowledged this, particularly in the area of development aid. The United Nations has also started to realize the need to support fragile parliaments as it sets out to rebuild states emerging from conflicts. The United Nations has also shown a new interest in keeping parliaments duly informed of their agenda and activities. (28) Yet much more needs to be done and we look to the Inter-Parliamentary Union to help forge a closer and more effective working relationship between the United Nations and our parliaments. D The Inter-Parliamentary Union […] (32) We affirm that the ipu is the international body best suited to help build the relationship between parliaments and the United Nations. As an Observer to the United Nations since 2002, the ipu has played this role to increasing effect. We encourage the ipu and the United Nations to expand their cooperation and set it on a firmer footing. (33) In keeping with the recommendations of the first two Speakers’ Con­ ferences to bridge the democracy deficit in international relations, we also encourage the ipu to promote greater accountability and transparency of the Bretton Woods institutions. The ipu can do this by facilitating more direct interaction between parliaments and the Bretton Woods Institutions, and by

33 Securing Global Democratic Accountability

223

helping to strengthen the capacities of parliaments to exercise their role in the budget process and economic decision-making in general. (34) We welcome the discussion which has been started within the ipu in order to strengthen its functions, promote its efficiency and develop its cooperation with the United Nations and its institutions. […]

224

chapter D

34 Transparency and Accountability in the Funding of Political Parties and Election Campaigns Resolution adopted by consensus by the Inter-Parliamentary Assembly, Panama (Panama), 20 April 2011 (124th session) The 124th Assembly of the Inter-Parliamentary Union, Considering that representative and participatory democracies function largely within the political party system as essential expressions of the political will of the people, Recognizing that political parties require appropriate funding to fulfil their core functions, both during and between elections, Mindful that it is to the benefit of the public, and to democracy as a whole, that political parties are adequately funded within an agreed framework of accountability and mechanisms for transparency, Acknowledging that, in modern democracies, significant resources are required to conduct competitive election campaigns enabling political parties to communicate their policy proposals as broadly as possible, Also recognizing that political party funding may be both public and private, direct and indirect (free broadcasting time on television and radio, tax remissions, use of public buildings and public election billboards, etc.), and that, in order to mitigate the risks associated with political party funding, measures have been put in place in many countries to regulate spending on elections and ensure transparency and accountability in the funding of political parties generally, Noting that in systems where there is limited public funding of political parties, the importance of private funding increases, and vice versa, Also noting that the concerns surrounding the private funding of political parties, which are often viewed as a question of political equality, relate to three main points: inadequate resources that result in political parties and candidates pursuing relationships with donors who expect certain gains should those parties come into power; some political parties being better resourced than others; and cases where campaign finances come from compromised sources that expect a legislative or other benefit, Recognizing that the aspects of private funding that need to be addressed concern the admissibility of anonymous donations, cash donations, donations by foreign natural and legal entities, foreign international organizations, nongovernmental organizations (ngos), State-owned enterprises and enterprises responding to calls to tender, Noting that while codes of conduct for members of parliament and the  ­executive have addressed accountability issues as they apply to elected

34 FUNDING OF POLITICAL PARTIES AND ELECTION CAMPAIGNS

225

representatives individually, there has been growing concern over the funding of political parties and the associated accountability of political parties, as a whole, to the people, Further noting that consideration should be given to clear guidelines to regulate party and campaign finance (reasonable limitations on campaign finance, campaign finance reporting requirements, political finance reporting requirements, measures to prevent the misuse of State resources, the establishment of an independent regulatory body to monitor the funding of political parties and electoral campaigns, and appropriate sanctions for violations), in order to ensure that political parties remain accountable to citizens, Recalling that Article 7.3 of the United Nations Convention against Corruption, which entered into force on 14 December 2005, provides that “Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of the Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties”, Convinced that corruption represents a serious threat to the rule of law, democracy, human rights, equity and social justice, Considering that political parties and election campaigns in all countries should aim to prevent and fight corruption, Recognizing that the State should provide reasonable and impartial support to political parties, in accordance with a set of agreed criteria promoting equal access to resources under the principle of political pluralism and acting as a counterweight to corruption by eliminating the need for undue reliance on private donors, Noting that public funding does not necessarily reduce the need for private funding, but should be used to mitigate the negative effects of excessive reliance on the latter and to support smaller political parties that may not have access to private sources of financing for their political campaigns, but whose contributions to political debate are essential to a healthy democracy, Also noting that, even though women’s presence in national parliaments has increased, lack of economic resources in the electoral process is a bigger challenge for women than for men, Underscoring that temporary special measures, as outlined in Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women, aimed at promoting gender equality should not be considered discriminatory and that the allocation of funds based on party support for women candidates could be seen as an incentive for achieving gender equity in parliaments and for increasing women’s political participation,

226

chapter D

Reiterating that gender equality and the empowerment of women are crucialcomponents of any democratic system and that access to public and private funding can help promote gender equality in politics, Noting that political parties are key for the achievement of balanced participation by women and men in political life, Recognizing that many countries have adopted measures such as bans or limits on private political contributions, spending limits for election campaigns, increased public funding of political parties and controls over political expenditure, Noting that some States have enacted legislation ranging from requiring political parties to put in place financial controls, public disclosure of funding sources and an array of criminal, administrative and financial sanctions to ensure compliance with the law, Recognizing that public confidence in the democratic process could be undermined by political funding mechanisms that are not accountable and transparent, and that this should not only be a cause for concern for governments and parliaments, but also for international organizations working to enhance world democracy, and for political parties, Noting that the reasons for regulating political party funding include the need to promote the democratic principles of transparency and accountability, prevent corruption, enhance competition among a broad range of political parties, accommodate a wide spectrum of political viewpoints, platforms and policies, and strengthen political parties and empower citizens to make informed decisions, Recognizing that while mandatory disclosure of political party funding contributes to greater transparency and gives the public an opportunity to understand what factors might inform the actions of a political party, it might also discourage donors from funding political parties, Mindful that disclosure laws, regulations and guidelines on campaign and political party funding seek to limit the negative impact of anonymous, foreign or corporate sources of funds to political parties and to ensure that all parties have an equal opportunity to compete, and that, although these measures may prove difficult to enforce in some countries, they are nevertheless important for ensuring that citizens are able to hold their political parties and elected representatives to account, 1. Invites States to consider putting in place measures aimed at ensuring the independence of political parties so as to shield them from undue influence, and at avoiding corruption and excessive spending on election campaigns, including by capping spending during election campaigns; 2. Recommends that the call to reduce election spending must take into account gender equality, low levels of income, literacy, access to information

34 FUNDING OF POLITICAL PARTIES AND ELECTION CAMPAIGNS

227

and technology, and the vast distances between urban and rural areas in some countries; 3. Considers that political party funding should aim to give people a voice in the political and democratic process by encouraging a diversity of opinions and political perspectives, promoting a level playing field between large, well-funded political parties and those less endowed with financial means and generally encouraging meaningful participation in the political process by all actors – men and women – irrespective of their financial means and access to resources; 4. Is convinced that raising public awareness of political party funding enhances the functioning of democratic institutions and limits corruption; 5. Recognizes that the existence of different democratic and constitutional systems and political parties makes it difficult to set up universal accountability mechanisms for political party funding; encourages parliaments, through the ipu, nevertheless to continue to ensure accountability and transparency in keeping with the realities prevailing in different countries while drawing upon the basic principles enshrined in international instruments such as the United Nations Convention against Corruption, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; 6. Recommends that parliaments, as institutions tasked with overseeing government action, civil society organizations and the media serve as watchdogs, educate citizens about the funding of political parties and continuously monitor the exercise of power in order to build a culture of transparency and responsibility in political life; 7. Encourages political parties to be part of the solution and become agents of change in a transparent and accountable manner; 8. Recommends the use of self-regulatory mechanisms, including internal codes of conduct and integrity for political parties; 9. Invites parliaments to consider putting in place measures to limit, prohibit or regulate funding inter alia by ngos, corporate bodies and foreign sources, so as to ensure that they do not exert an undue influence on political outcomes; 10. Recommends that parliaments, governments and political parties ensure that legislation and mechanisms are put in place that require political parties and candidates to establish internal and financial controls with a view to greater financial accountability; 11. Encourages parliaments to adopt, in their legislative frameworks, anticorruption regulations regarding the funding of political parties and election campaigns, in cases where specific laws, procedures or systems that provide for the regulation of such funding do not already exist; 12. Calls upon the ipu to develop a technical assistance and training programme on financial accounting systems and codes of conduct for political parties.

228

chapter D

35 Chair’s Summary of the Debate: “The ipu at 125: Renewing Our Commitment to Peace and Democracy” Adopted by the Inter-Parliamentary Assembly, Geneva (Switzerland), 17–20 March 2014 (130th session) On the occasion of the 130th ipu Assembly (17–20 March 2014), 715 parliamentarians from 150 national parliaments met in Geneva, Switzerland. They reflected on the work of the ipu since its establishment in 1889 and expressed their unflinching commitment to peace and democracy. Over the past 125 years, the world has witnessed two world wars, chemical and nuclear attacks, revolution, insurgency and terrorism. During that time, the ipu has worked tirelessly to promote peace and stability through dialogue and negotiation and to support new democracies. Throughout its history, the ipu’s membership has grown to 164 parliaments from all over the world; its sphere of activity has broadened significantly. From its beginnings as the first example of institutionalized multilateral cooperation, the ipu has become the focal point for worldwide parliamentary dialogue – an essential forum for the world’s parliamentarians to interact, share ideas and experiences, and initiate joint action – advocating peace and cooperation among peoples, and striving for the firm establishment of representative democracy. As the world organization of national parliaments, the ipu brings a parliamentary dimension to the work of the United Nations. It provides a unique venue for parliamentarians to discuss global issues, and bring the voice of members of parliament to un decision-making bodies. This strong and strategic two-way partnership, which is based on dialogue and exchange, sets a solid foundation for peace and democracy the world over. This vision is embodied in the ipu Strategy for 2012-2017, Better parliaments, stronger democracies. In an increasingly globalized world, no individual is an island. Rapid advances in information and communication technology mean that people around the world are increasingly interconnected. Citizens are demanding more and better responses from their elected representatives. When their rights are flouted and freedoms denied, people lose their trust in governance structures and will put their lives on the line in protest. Recent popular uprisings serve to illustrate the strength of “people power”. The world over, people want responsible governments and accountable leaders, stability and peace. Parliaments must meet that challenge. To ensure success, democracy must be home-grown and adapted to national realities. The world is no safer than it was 125 years ago: transnational organized crime, cybercrime, terrorism and the proliferation of weapons of mass

35 CHAIR’S SUMMARY OF THE DEBATE: “THE IPU AT 125”

229

destruction are but some of the serious threats to peace, security and fundamental rights. Peace is more than just the absence of conflict and violence; peace is the guarantee of the right of all citizens to participate in the development of society through representative democracy. The majority of operations to restore peace and security in post-conflict situations therefore share key goals: to elect a parliament that can ensure government by the people, for the people, and to build peace on a foundation of dialogue, cooperation and understanding. Disarmament is the cornerstone of a safe world and parliamentarians have a key role to play in achieving it by assessing risks, legislating to mitigate those risks, and monitoring government compliance with domestic law and international obligations. Parliamentarians can build the legislative framework for a weapons-free world. Peace and security cannot be achieved through threats and the abuse of power; they must be carefully cultivated through dialogue, understanding, mutual respect and democracy. Violations of fundamental freedoms, such as freedom of speech, freedom of association and the freedom to travel, are violations of democracy. Freedom is not free: it comes at the price of respect, trust and equality. Poverty, hunger and marginalization lead to dissatisfaction and unrest, and leave people vulnerable to exploitation under the guise of promises of a better life. Trafficking in persons, labour exploitation and sexual exploitation and brutality are, unfortunately, widespread. These modern-day forms of slavery constitute a grave violation of the basic rights and freedoms enshrined in the Universal Declaration of Human Rights. The promotion and protection of human rights at the national level must therefore be driven by parliaments as a basic principle of democracy. Parliamentarians can legislate for the protection of human rights and fundamental freedoms, they can monitor the executive’s compliance with international obligations, and they must speak out on behalf of the most vulnerable members of society. Parliamentarians, as the voice of the people, entrusted by the people to strive for a just and equitable society, must fulfil that responsibility. Sadly, in some countries, the human rights of parliamentarians themselves are not respected. Their freedom of expression is denied. They are victimized, imprisoned, or even murdered for speaking out on behalf of their people. The ipu plays a crucial role, through the work of its Committee on the Human Rights of Parliamentarians, in bringing an end to these injustices. Using peaceful dialogue and negotiation the ipu obtains remarkable results, securing the release of political prisoners and redress for victims of violations. True democracy simply cannot exist without equality and mutual respect. Women’s participation in politics is essential. Unfortunately, women remain largely underrepresented in politics in many countries. The ipu’s efforts to

230

chapter D

­ romote the inclusion of women in parliament have been invaluable and p must continue. Similarly, the rights of indigenous peoples must be respected. Many indigenous peoples’ livelihoods are endangered. Parliamentarians must uphold their responsibility to be the voice of all people, especially underrepresented minorities. The inclusion of all groups in society – indigenous peoples, women and young people – in political processes and decision-making, is the only way to ensure true equality, enhancing security, stability and peace. Good governance and democracy are fundamental for progress in all areas of life and parliaments have a critical role to play in promoting a better world for all. Parliamentary input is needed now more than ever, as the international community embarks on the establishment of a new internationally agreed framework for development. Parliamentarians must pick up the gauntlet and play a central role in that process. They must steer efforts to attain the sustainable development goals, as a basis for equality, protection of basic civil, political, social and economic rights, and ultimately peace and security. The post-2015 sustainable development goals must ensure democratic governance is a key commitment. Transparency, accountability, representative democracy and respect are components of the new development agenda, which must be linked to the world’s parliaments to ensure its success for all people. International democracy has evolved considerably since 1889, largely due to the central role played by the ipu in supporting the establishment of democratic forms of governance at the national and international levels alike. Throughout its history, the ipu has shown unwavering commitment to the promotion of peace and security, human rights and sustainable development. In a changing world, 125 years after the ipu’s inception, the vision of its founding fathers is as valid and true as ever. Many important lessons have been learned, not least that lasting peace and security can only be achieved through inclusive and participatory processes, and embodied in a representative and elected parliament. Parliaments are the voice of the people. Now is the time to take up the ­lessons learned over 125 years of ipu history and use them to drive the next generation of change. The Member Parliaments of the ipu therefore renew their commitment to peace in the world, based on democracy, human rights and the rule of law.

part 2 Transregional Documents

∵

Introduction In this section documents of two organisations are grouped together which can neither be qualified as regional nor as universal, hence the qualification as transregional organisations. Both, the Organisation Internationale de la Francophonie (oif) and the Commmonwealth of Nations (formerly British Commonwealth of Nations) are non-regional in the sense that their member states are spread over large parts of the globe. At the same time, they are not universal because they rely on specific historical or cultural ties among their members (in the case of the oif the French language and in the case of the Commonwealth the historic origins in the British Empire). These common ties preclude the accession of states which do not belong to the respective linguistic or historic background. However, beyond cherishing the historic and cultural bonds of their members, both organizations have committed themselves to the promotion and consolidation of democracy. The oif was created in 1970 on the basis of a binding international treaty, the Convention on the Agency for Cultural and Technical Co-Operation (Convention relative à l’Agence de coopération culturelle et technique). The founding document provides for the status of full membership, associate membership and observer status. Currently, there are 54 full members, 3 associated members and 23 observers. Furthermore the oif is expressly endowed with international legal personality (Article para. 1 of the Convention). While the Convention itself does not expressly mention democracy among the goals to be pursued, promoting democratic structures within the internal order of the member states soon became one of its major areas of activity. Among the documents produced by the oif the “Bamako Declaration” of 2000 (→ Doc. 36) certainly is one of the fundamental instruments. In 2006 the Bamako Declaration was complemented by the “Déclaration de St. Boniface”, which, however, was not included in this collection because it is currently only available in French. The Commonwealth of Nations is not based on a formal treaty under international law. The organisation dates back to the 1920ies. It was formally constituted in 1949 by the London Declaration of the Prime Ministers’ Conference. The Declaration recognized King George VI as Head of the Commonwealth. In that capacity, he was succeeded by Queen Elizabeth II who signed the current “Charter of the Commonwealth” in 2013 (→ Doc. 39). In section I on democracy, the Charter explicitly refers to “the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections in shaping the society in which they live.” It furthermore states that “Parliaments

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_007

234

Introduction

and representative local governments and other forms of local governance are essential elements in the exercise of democratic governance.” Earlier documents on democracy elaborated within the context of the Commonwealth are the “Millbrook Action Plan on the Harare Declaration” (→ Doc. 37) and the “Aso Rock Commonwealth Declaration on Development and Democracy” (→ Doc. 38). On the democracy documents of the Francophonie and the Commonwealth, see Albert Bourgi/Jean Pierre Colin, L’organisation internationale de la Francophonie: Un instrument pour l’expansion de la démocratie, in: Questions internationals 22 (2006), p. 103–110; James Mayall, Democratizing the Commonwealth, in: International Affairs 74 (1998), p. 379–392

chapter A

Organisation Internationale de la Francophonie 36

Bamako Declaration

Adopted by the Ministers and Heads of delegation of States and Governments, Bamako (Mali), 3 November 2000 (12th session) We, Ministers and Heads of Delegation of the States and Governments of Countries using French as a common language, meeting at Bamako for the International Symposium on the status of practices of democracy, rights and freedoms in the Francophone world, Guided by the provisions of the Francophonie Charter, which defines as priority objectives assistance in the establishment and development of democracy, conflict prevention and support for the rule of law and human rights, Recalling the Francophonie’s dedication to the Universal Declaration of Human Rights and to regional charters, as well as the commitments made at the Francophone Summits of Dakar (1989), Chaillot (1991), Mauritius (1993), Cotonou (1995), Hanoi (1987) and Moncton (1999), Situating our action within the framework of the United Nations Decade for Human Rights Education (1995–2004), Considering the actions taken by the Francophonie in the last ten years to support the democratic processes, Desirous of furthering democracy through economic and social development and fair distribution of national resources so as to ensure equal access to education, training, health and employment, Seeking to fulfill the objective set at the Moncton Summit to hold an International Symposium on the status of the practices of democracy, rights and freedoms in the Francophone world, to strengthen cooperation and joint efforts to promote the rule of law and a democratic culture, and to open in this way a new stage in the dialogue between States and governments of countries using French as a common language, in order to better underline the major features of their recent experience and of their unique circumstances, 1 Recognize – That the status of the practices of democracy, rights and freedoms in the Francophone world over the past ten years reflects undeniable progress: human

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_008

236

Chapter A

rights have been enshrined in constitutions, institutions of democracy and the rule of law have been established, counterbalances are making themselves felt, multiparty systems have emerged in many Francophone countries, free, fair and transparent elections have been held, the opposition is contributing to the workings of democracy, and local democracy has been furthered through decentralization; – That the status also betrays shortcomings and failures: recurring conflicts, breakdown of democratic processes, genocide and massacres, serious violations of human rights, persistent behavior that undermines the development of a democratic culture, lack of independence for certain institutions, and constraints of an economic, financial and social nature that tend to disillusion citizens with the democratic system; 2 Declare Our Adherence to the Following Fundamental Principles: 1. Democracy is a system of universal values based on recognition of the inalienable dignity and the equal value of all human beings; everyone has the right to play an active role in social, professional and political life and to enjoy the right to development; 2. The essential elements of any democratic regime must include the constitutional rule of law, which implies submission of all institutions to the law, the separation of powers, the free exercise of human rights and fundamental liberties, and equality before the law for all citizens, men and women; 3. Democracy requires, in particular, the holding, at regular intervals, of free, fair and transparent elections, based on the respect and exercise, without any hindrance or discrimination, of the right to freedom and physical integrity for every voter and every candidate, the rights to freedom of opinion and expression, especially through the press and other communications media, freedom of assembly and demonstration, and freedom of association; 4. Democracy is incompatible with any substantial change in the electoral system introduced arbitrarily or surreptitiously, and there must be a reasonable interval between the adoption of any amendment and its entry into force; 5. Democracy presupposes the existence of political parties that have equal rights and are free to organize and to express themselves, provided their programs and actions do not call into question the fundamental values of democracy and human rights. Thus, democracy goes hand-in-hand with a multiparty system. The opposition must be guaranteed a clearly defined status free of any ostracism; 6. Democracy requires the practice of dialogue at all levels, between citizens, between social partners, between political parties, and between the State and

36 Bamako Declaration (2000)

237

civil society. Democracy implies participation by citizens in political life and allows them to exercise their right of control; 3 Proclaim 1. That Francophonie and democracy are inseparable: strengthening the Francophone ideal will be impossible without steady progress towards democracy and its embodiment in reality; the Francophonie is, therefore, committed to democracy as a priority that must be translated into concrete proposals and achievements; 2. That for the Francophonie there is no single organizational scheme for democracy and that the forms in which democracy expresses itself, while respecting universal principles, must everywhere reflect people’s specific historic, cultural and social realities; 3. That democracy, as the political framework for the rule of law and the protection of human rights, is the system of government that best promotes longterm stability and legal security; thanks to the climate of freedom that it creates, democracy also establishes the conditions for freely accepted mobilization on the part of the people to achieve development; democracy and development cannot be dissociated: these are the factors promoting a lasting peace; 4. That citizens, including the poorest and the most disadvantaged, will judge democracy by the care with which all of their rights, civil, political, economic, social and cultural, are respected, by the degree to which they are able to enjoy those rights and by the extent to which those rights are protected by guarantees and machinery. These conditions are essential for inspiring public confidence in democratic institutions and enlisting people’s active participation in political and social life; 5. That in order to preserve democracy, the Francophonie condemns all seizures of power through violence, arms or other illegal means; 6. That in order to consolidate democracy, the action undertaken by the Francophonie must be based on international cooperation that draws on the positive practices and experiences of each member State and Government; 7. That international relations must also be governed by democratic principles in all their dimensions, political, economic, social, cultural and legal; 4

Undertake the Following Commitments:

A To Consolidate the Rule of Law 1. To strengthen the capacities of the institutions, traditional or new, that make up the rule of law and to strive to enable them to enjoy the full independence they need in order to carry out their mission impartially;

238

Chapter A

2. To encourage a more vigorous parliamentary system by substantially facilitating the work of elected representatives, ensuring respect for their immunity and providing them with the necessary training; 3. To ensure independence for the judiciary, freedom for the legal profession, and the promotion of an effective and accessible justice as the guarantor of the rule of law, in accordance with the Declaration and Five-year Action Plan adopted at Cairo by the 3rd Conference of Francophone Ministers of Justice; 4. To establish the principle of transparency as the rule governing the functioning of institutions; 5. To ensure that all agencies and institutions and all establishments, public or private, that handle public funds are subject to generalized and expanded control by impartial supervisory bodies; 6. To support the activities of institutions established in the framework of regional integration and cooperation, with a view to promoting the emergence at this level of a civic conscience oriented towards development, progress and solidarity; B For the Holding of Free, Fair and Transparent Elections 7. To strive to strengthen the national capacities of all players and institutions involved in the electoral process, with particular attention to establishing reliable civil registries and voters’ lists; 8. To ensure that the organization of elections, from the preparatory stage through the election campaign to the counting of votes and the proclamation of results, including, where required, the resolution of any disputes, is conducted in full transparency and is handled by credible bodies whose independence is recognized by all; 9. To guarantee the full participation of citizens in the vote, as well as equal treatment of candidates during the entire electoral process; 10. To involve all legally established political parties, those in the majority as well as those in the opposition, in all stages of the electoral process, with full respect for the democratic principles enshrined in the basic legislation and the institutions, and allow them access to funding from the State budget; 11. To take the necessary steps to move towards national financing of elections with public funds; 12. To accept the results of free, fair and transparent elections; C For a Peaceful Political Life 13. To ensure that basic legislation governing democratic life reflects a broad national consensus, while respecting international standards, and that it is regularly assessed and updated;

36 Bamako Declaration (2000)

239

14. To involve all political parties, whether of the majority or the opposition, in national, regional and local political life, in accordance with the law, so as to settle any conflicts of interest peacefully; 15. To promote citizen participation in public life through the progressive introduction of local democracy, as a central condition for strengthening democracy; 16. To prevent, or as necessary ensure the peaceful settlement of, disputes and tensions between political and social groups, through all appropriate mechanisms and means, such as establishing special status for former Heads of State, without prejudice to any criminal liability on their part, under national and international laws; 17. To recognize the role and facilitate the constant involvement of civil society, including non-governmental organizations, the media and traditional moral authorities, enabling them, in the public interest, to make their contribution to a balanced political life; 18. To ensure effective respect for freedom of the press and guarantee that all political forces have an equitable access to the public and private media, both printed and audiovisual, under regulations consistent with democratic principles; D For Instilling a Democratic Culture and Full Respect for Human Rights 19. To develop a spirit of tolerance and promote a democratic culture in all its dimensions, so as to foster, through education and training, an awareness of the ethical demands of democracy and of human rights among public officials, all players in political life and the citizenry at large; 20. To promote, to that end, the emergence of new partnerships between public and private initiatives, mobilizing all those engaged in promoting democracy and human rights; 21. To ratify the principal international and regional human rights instruments, honor and fulfill the commitments flowing therefrom, ensure their full implementation and give the proper training to all those responsible for enforcing them; 22. To adopt in particular, in order to combat impunity, all measures necessary for prosecuting and punishing those responsible for serious violations of human rights, as provided for in various international and regional legal instruments, including the Rome Statute of the International Criminal Court; and to encourage its swift ratification by the greatest possible number of countries; 23. To create, generalize and strengthen national institutions, advisory or otherwise, for promoting human rights and to support the creation of structures

240

Chapter A

within national administrations devoted specifically to human rights, and to assist the defenders of human rights in their efforts; 24. To take all appropriate measures to ensure that members of minority groups, whether ethnic, philosophical, religious or linguistic, enjoy the freedom to practice or not to practice a religion, the right to speak their own language, and to have their own cultural life; 25. To ensure respect for the dignity of immigrants and the enforcement of the relevant provisions contained in international instruments concerning them; * To These Ends, and with a View to Inspiring a Renewed Partnership, We Intend: – To intensify cooperation between the International Organization of the Francophonie (oif) and international and regional organizations, to develop concerted action to democratize international relations, and to support, in this context, initiatives to promote democracy; – To strengthen the mechanisms for cooperation and permanent dialogue with international non-governmental organizations recognized by the Francophonie, and particularly with those that pursue the same objectives in the fields of democracy and human rights; 5 We Decide to Recommend the Implementation of the Following Procedures to Monitor the Practices of Democracy, Rights and Freedoms in the Francophone World: 1. The Secretary-General will keep himself informed at all times of the situation with respect to the practices of democracy, rights and freedoms in the Francophone world, relying in particular on the Delegation for Human Rights and Democracy, responsible for observing the respect of democracy and human rights in member countries of the Francophonie; A continued evaluation of the practices of democracy, rights and freedoms in the Francophone world shall be carried out, as a preventive measure, within the framework of the International Organization of the Francophonie, on the basis of the founding principles set forth above. This evaluation shall make it possible to: – Define the most appropriate measures for helping democracy, rights and freedoms to take root, – Provide States and Governments, at their request, with the necessary assistance in these fields, – Help to set up an early warning system;

36 Bamako Declaration (2000)

241

2. In the case of a democratic crisis or of severe human rights violations, the official bodies of the Francophonie will address the issue, consistent with the provisions of the Charter, and will take initiatives to prevent the worsening of such situations and to help to resolve them. To that end, the SecretaryGeneral proposes the following specific measures: – He may send a facilitator to help seek consensus on possible solutions. The success of any action depends upon the prior acceptance of the facilitation process by the authorities of the country concerned. The facilitator shall be selected by the Secretary-General after consultation with the President of the Ministerial Conference, with the consent of all parties involved in the dispute. Facilitation shall be carried out in close coordination with the Permanent Council of the Francophonie (cpf); – Where the Francophone community is concerned about a specific trial or proceeding, he may send judicial observers to the country, with the concurrence of the cpf and the country itself; 3. In the case of a breakdown of democracy, or massive human rights violations, the following actions shall be taken: The Secretary-General shall immediately consult with the President of the Ministerial Conference of the Francophonie; The issue shall be immediately and automatically included on the agenda of the cpf, which may be convened in emergency session and, where necessary, may: – Confirm the breakdown of democracy or the existence of massive human rights violations, – Condemn them publicly, – Call for the re-establishment of the constitutional order or an immediate halt to such violations; The cpf shall notify the parties concerned of its decision; The Secretary-General shall establish contact with de facto authorities. He may send an information and contact mission to the country. This mission shall prepare a report as quickly as possible. The report shall be submitted to the national authorities for their comments. The mission’s report and the comments of the national authorities shall subsequently be submitted to the cpf for any action that it deems appropriate; The cpf may take the following measures: – It may refuse to support candidates presented by the country concerned for elective positions in international organizations, – It may refuse to allow events or conferences of the Francophonie to be held in the country concerned,

242

Chapter A

– It may make recommendations concerning the granting of visas to de facto authorities of the country concerned, and cut back inter-governmental contacts, – It may suspend participation by representatives of the country concerned in meetings of Francophonie official bodies, – It may suspend multilateral cooperation of the Francophonie, with the exception of programs of direct benefit to the civilian population and those that might support a return to democracy, – It may propose suspension of the country concerned from the Francophonie. In the case of a military coup against a democratically elected government, such suspension is decided; When steps are taken to restore the constitutional order or put an end to massive human rights violations, the cpf shall assess the procedure for the return to the normal institutional functioning, together with guarantees of respect for human rights and fundamental freedoms. It shall determine the measures that the Francophonie may take to support this process in partnership with other international and regional organizations; If necessary, the cpf will place the issue before the Ministerial Conference of the Francophonie, through its President; The question of the breakdown of democracy or massive human rights violations in any country, and the measures taken, shall remain on the agenda of the cpf for as long as such breakdown or violations persist. * We, Ministers and Heads of delegation of States and Governments using French as a common language, Hereby adopt this declaration; Request the Secretary-General of the International Organization of the Francophonie to ensure its implementation; Transmit the attached draft program of action for consideration of Heads of State and Government at their Ninth Francophone Summit in Beirut.

chapter B

The Commonwealth 37 Millbrook Commonwealth Action Programme on the Harare Declaration Adopted by the Heads of Government, 12 November 1995 (New Zealand) 1. At Harare in 1991, we pledged to work for the protection and promotion of the fundamental political values of the association, namely democracy, democratic processes and institutions which reflect national circumstances, fundamental human rights, the rule of law and the independence of the judiciary, and just and honest government. We agreed at the same time to work for the promotion of socio-economic development, recognising its high priority for most Commonwealth countries. During our Retreat at Millbrook, we decided to adopt a Commonwealth Action Programme to fulfil more effectively the commitments contained in the Harare Commonwealth Declaration. Advancing Commonwealth Fundamental Political Values Measures in Support of Processes and Institutions for the Practice of the Harare Principles 2. The Secretariat should enhance its capacity to provide advice, training and other forms of technical assistance to governments in promoting the Commonwealth’s fundamental political values, including: – assistance in creating and building the capacity of requisite institutions; – assistance in constitutional and legal matters, including with selecting ­models and initiating programmes of democratization; – assistance in the electoral field, including the establishment or strengthening of independent electoral machinery, civic and voter education, the p ­ reparation of Codes of Conduct, and assistance with voter registration; – observation of elections, including by-elections or local elections where appropriate, at the request of the member governments concerned; – strengthening the rule of law and promoting the independence of the ­judiciary through the promotion of exchanges among, and training of, the judiciary;

1 A

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_009

244

chapter B

– support for good government, particularly in the area of public service reform; and – other activities, in collaboration with the Commonwealth Parliamentary Association and other bodies, to strengthen the democratic culture and effective parliamentary practices. B Measures in Response to Violations of the Harare Principles 3. Where a member country is perceived to be clearly in violation of the Harare Commonwealth Declaration, and particularly in the event of an unconstitutional overthrow of a democratically elected government, appropriate steps should be taken to express the collective concern of Commonwealth countries and to encourage the restoration of democracy within a reasonable time frame. These include: – immediate public expression by the Secretary-General of the Commonwealth’s collective disapproval of any such infringement of the Harare principles; – early contact by the Secretary-General with the de facto government, followed by continued good offices and appropriate technical assistance to facilitate an early restoration of democracy; – encouraging bilateral démarches by member countries, especially those within the region, both to express disapproval and to support early restoration of democracy; iv. appointment of an envoy or a group of eminent Commonwealth representatives where, following the Secretary-General’s contacts with the authorities concerned, such a mission is deemed beneficial in reinforcing the Commonwealth’s good offices role; – stipulation of up to two years as the time frame for the restoration of democracy where the institutions are not in place to permit the holding of elections within, say, a maximum of six months; – pending restoration of democracy, exclusion of the government concerned from participation at ministeriallevel meetings of the Commonwealth, including Commonwealth Heads of Government Meetings; – suspension of participation at all Commonwealth meetings and of Commonwealth technical assistance if acceptable progress is not recorded by the government concerned after a period of two years; and – consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government-to-government contacts; people-to-people measures; trade r­estrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

37 Millbrook Commonwealth Action Programme

245

C Mechanism for Implementation of Measures 4. We have decided to establish a Commonwealth Ministerial Action Group on the Harare Declaration in order to deal with serious or persistent violations of the principles contained in that Declaration. The Group will be convened by the Secretary-General and will comprise the Foreign Ministers of eight countries,* supplemented as appropriate by one or two additional ministerial representatives from the region concerned. It will be the Group’s task to assess the nature of the infringement and recommend measures for collective Commonwealth action aimed at the speedy restoration of democracy and constitutional rule. 5. The composition, terms of reference and operation of the Group will be reviewed by us every two years. […] * As at May 2008, the membership of CMAG comprised Ministers from Ghana, Malaysia (chair), Namibia, New Zealand, Papua New Guinea, St Lucia, Sri Lanka, United Kingdom and Uganda.

246

chapter B

38 Aso Rock Commonwealth Declaration on Development and Democracy: Partnership for Peace and Prosperity Adopted by the Heads of Government, Abuja (Nigeria), 5 to 8 December 2003 1. We, the Heads of Government of the Commonwealth of Nations, meeting at Abuja, Nigeria, from 5 to 8 December 2003, commit ourselves to strengthen development and democracy, through partnership for peace and prosperity. Building on the landmark Declarations in Singapore, Harare and Fancourt, we are committed to democracy, good governance, human rights, gender equality and a more equitable sharing of the benefits of globalisation. […] 6. We further recognise that while development and democracy are goals each in its own right, they must be mutually reinforcing, with a clear “democratic dividend”, in terms of delivering tangible benefits to people. We are convinced that broad-based prosperity creates the stability conducive to the promotion of democracy; and that strong democratic institutions better promote development. 7. Accordingly, we commit ourselves to make democracy work better for ­pro-poor development by implementing sustainable development ­programmes and enhancing democratic institutions and processes in all human endeavours. We recognise that building democracy is a constantly evolving process. It must also be uncomplicated and take into account national circumstances. Among the objectives we seek to promote are the following: – a participatory democracy characterised by free and fair elections and representative legislatures; – an independent judiciary; – a well-trained public service; – a transparent and accountable public accounts system; – machinery to protect human rights; – the right to information; – active participation of civil society, including women and youth; – substantially increased and more effective financial resources; – adherence to the internationally agreed targets of 0.7 percent of gnp for development assistance; – financing and realisation of the mdgs; – increased democracy at the global level, including enhanced participation and transparency in international institutions.

39 Charter of the Commonwealth

39

247

Charter of the Commonwealth

Adopted on 14 December 2012, signed by Her Majesty Queen Elizabeth II, Head of the Commonwealth on the Commonwealth Day, 11 March 2013 We the people of the Commonwealth: Recognising that in an era of changing economic circumstances and uncertainty, new trade and economic patterns, unprecedented threats to peace and security, and a surge in popular demands for democracy, human rights and broadened economic opportunities, the potential of and need for the Commonwealth – as a compelling force for good and as an effective network for co-operation and for promoting development – has never been greater, Recalling that the Commonwealth is a voluntary association of independent and equal sovereign states, each responsible for its own policies, consulting and co-operating in the common interests of our peoples and in the promotion of international understanding and world peace, and influencing international society to the benefit of all through the pursuit of common principles and values, Affirming that the special strength of the Commonwealth lies in the combination of our diversity and our shared inheritance in language, culture and the rule of law; and bound together by shared history and tradition; by respect for all states and peoples; by shared values and principles and by concern for the vulnerable, Affirming that the Commonwealth way is to seek consensus through consultation and the sharing of experience, especially through practical co-operation, and further affirming that the Commonwealth is uniquely placed to serve as a model and as a catalyst for new forms of friendship and co-operation in the spirit of the Charter of the United Nations, Affirming the role of the Commonwealth as a recognised intergovernmental champion of small states, advocating for their special needs; providing policy advice on political, economic and social development issues; and delivering technical assistance, Welcoming the valuable contribution of the network of the many intergovernmental, parliamentary, professional and civil society bodies which support the Commonwealth and which subscribe and adhere to its values and principles, Affirming the validity of and our commitment to the values and principles of the Commonwealth as defined and strengthened over the years including: the Singapore Declaration of Commonwealth Principles, the Harare Commonwealth Declaration, the Langkawi Declaration on the Environment, the Millbrook Action Programme, the Latimer House Principles, the Aberdeen

248

chapter B

Agenda, the Trinidad and Tobago Affirmation of Commonwealth Values and Principles, the Munyonyo Statement on Respect and Understanding, the Lake Victoria Commonwealth Climate Change Action Plan, the Perth Declaration on Food Security Principles, and the Commonwealth Declaration on Investing in Young People, Affirming our core Commonwealth principles of consensus and common action, mutual respect, inclusiveness, transparency, accountability, legitimacy, and responsiveness, Reaffirming the core values and principles of the Commonwealth as declared by this Charter: i Democracy We recognise the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections in shaping the society in which they live. Governments, political parties and civil society are responsible for upholding and promoting democratic culture and practices and are accountable to the public in this regard. Parliaments and representative local governments and other forms of local governance are essential elements in the exercise of democratic governance. We support the role of the Commonwealth Ministerial Action Group to address promptly and effectively all instances of serious or persistent violations of Commonwealth values without any fear or favour. ii Human Rights We are committed to the Universal Declaration of Human Rights and other relevant human rights covenants and international instruments. We are committed to equality and respect for the protection and promotion of civil, political, economic, social and cultural rights, including the right to development, for all without discrimination on any grounds as the foundations of peaceful, just and stable societies. We note that these rights are universal, indivisible, interdependent and interrelated and cannot be implemented selectively. We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds. […] iv Tolerance, Respect and Understanding We emphasise the need to promote tolerance, respect, understanding, moderation and religious freedom which are essential to the development of free and democratic societies, and recall that respect for the dignity of all human beings is critical to promoting peace and prosperity.

39 Charter of the Commonwealth

249

We accept that diversity and understanding the richness of our multiple identities are fundamental to the Commonwealth’s principles and approach. v Freedom of Expression We are committed to peaceful, open dialogue and the free flow of information, including through a free and responsible media, and to enhancing democratic traditions and strengthening democratic processes. vi Separation of Powers We recognise the importance of maintaining the integrity of the roles of the Legislature, Executive and Judiciary. These are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and adherence to good governance. vii Rule of Law We believe in the rule of law as an essential protection for the people of the Commonwealth and as an assurance of limited and accountable government. In particular we support an independent, impartial, honest and competent judiciary and recognise that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice. viii Good Governance We reiterate our commitment to promote good governance through the rule of law, to ensure transparency and accountability and to root out, both at national and international levels, systemic and systematic corruption. […] xvi The Role of Civil Society We recognise the important role that civil society plays in our communities and countries as partners in promoting and supporting Commonwealth values and principles, including the freedom of association and peaceful assembly, and in achieving development goals. We are committed to ensuring that the Commonwealth is an effective association, responsive to members’ needs, and capable of addressing the significant global challenges of the future. We aspire to a Commonwealth that is a strong and respected voice in the world, speaking out on major issues; that strengthens and enlarges its networks; that has a global relevance and profile; and that is devoted to improving the lives of all peoples of the Commonwealth.

part 3 Regional Documents

∵

chapter A

Africa Introduction The documents in this part derive, among others, from the work of the African Union (au). The au is the most important regional organization in Africa, comprising today 54 African states. Morocco is the only African state that is not a member of the organization. The au was established on 26 May 2001 and launched on 9 July 2002 to replace the Organisation of African Unity (oau), which was founded already in 1963. According to Article 3 of the Constitutive Act of the African Union, the au has 14 objectives, among them to “promote democratic principles and institutions, popular participation and good governance”. This objective is reflected in an impressive number of documents that refer to democracy. By far the most popular document in that context is the “African Charter on Democracy, Elections and Governance” (adc) which is a formal international treaty and entered into force on 15 February 2012 (→ Doc. 47). It is currently binding on 23 au member states (as of 28 March 2015). This landmark document has the potential to play a crucial role in the promotion of democracy, notably the execution of free and fair elections and the encouragement of good governance on the African continent. Other organisations that are quite active in the field of democracy are the Economic Community of West African States (ecowas) and the International Conference on the Great Lakes Region (icglr). ecowas is a regional organization comprising 15 countries. According to Article 2, para. 1 of the Treaty of Lagos, which established ecowas, “[i]t shall be the aim of the Community to promote co-operation and development in all fields of economic activity.” However, in the meantime, the organization has evolved beyond its original predominantly economic character and is also strongly involved in conflict prevention and conflict resolution. The icglr is an inter-governmental organization consisting of twelve countries in the African Great Lakes Region. Pursuant to Article 4, para. 1 of the Pact on Security, Stability and Development For the Great Lakes Region it is active “in matters of peace and security, democracy and good governance, economic development and regional integration, as well as humanitarian, social and environmental issues.” Its founding history began in the year 2000 when the United Nations Security Council adopted resolutions S/RES/1291 (2000) and S/RES/1304 (2000) and called for “an international conference on peace, security, democracy and development in the Great

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_010

254

chapter A

Lakes region under the auspices of the United Nations and the Organization of African Unity, with the participation of all the Governments of the region and all others concerned.” In that respect it is difficult to understand why Malawi and Mozambique are not members of the icglr because culturally, geographically and historically they belong to this region. Less well-known than the African Charter on Democracy, but nevertheless of considerable regional importance, are two “Protocol[s] on Democracy and Good Governance” of the ecowas (→ Doc. 50) and the icglr (→ Doc. 53) which entered into force on 20 February 2008 and 21 June 2008. A very evident parallelism of these two treaties with the adc is that all three instruments formulate “Objectives” – which is the wording of the adc – or respectively “Constitutional Convergence Principles” or ”Principles of Constitutional Convergence” in their introductory articles. It is therefore very likely that the ecowas Democracy Protocol – which was the first real democracy treaty on the African continent – had a certain “blueprint” function. With regard to the evolutionary history of these three different documents it can be assumed that the adoption of the ecowas Democracy Protocol caused the icglr and the au to also start drafting corresponding democracy treaties. However, it cannot be asserted that the ecowas Democracy Protocol had the dominant function of an overall “role model” that was merely adapted by the icglr and the au. For such a conclusion the differences among the treaties are simply too numerous. It is for example very evident that the frequency of the word “democracy” varies considerably in the three documents. Concerning the ecowas Democracy Protocol the word appears in every sixth provision, whereas the icglr integrated it already in every third clause. However, the most progressive document in this respect is still the adc that uses this term in almost every Article. Especially with regard to this document it is very eye-catching that the integration of the word “democracy” is often not really needed to enhance the comprehensibleness of the respective article of the Charter. Sometimes the word even appears like a mantra, which shows – to give some e­ xplanation – how important democracy as form of government is for the au. Apart from these three treaties, this section comprises miscellaneous declarations, decisions, resolutions and also a so-called programme. The most productive organisation in this respect is the au. An important instrument is, for example, the “Declaration on the Framework for an oau Response to Unconstitutional Changes of Government” (→ Doc. 42). In this document the organization agreed on a series of principles concerning democratic governance. In addition, the “African Union Declaration on the Principles Governing Democratic Elections in Africa” is of particular importance since it presents a very comprehensive formulation of standards for free and fair elections.

Introduction

255

The considerable number of democracy documents on the African continent raises the question where the immense popularity of that subject matter stems from and why so many instruments are dedicated to the topic of democracy as a central theme. A possible explanation might be to interpret these documents as a political attempt to stabilize the often fragile African democracies and to avoid the danger of political chaos after poorly executed elections. This explanation seems all the more persuasive, given the fourth preamble consideration of the icglr Democracy Protocol which blames “the accumulated deficits in the matter of democratization” as an “origin of the conflicts in the Great Lakes Region.” On the democracy documents in Africa, see Frederick Cowell, The Impact of the ecowas Protocol on Good Governance and Democracy, in: African Journal of International & Comparative Law 19 (2011), p. 331–342; Stacy-Ann Elvy, Towards a New Democratic Africa: The African Charter on Democracy, Elections and Governance, in: Emory international law review 27 (2013), p. 41–116; Patrick J. Glena, Institutionalizing Democracy in Africa: A Comment on the African Charter on Democracy, Elections and Governance, in: African Journal of Legal Studies 5 (2012), p. 149–175; André M. Mangu, African civil society and the promotion of the African Charter on Democracy, Elections and Governance, in: African Human Rights Law Journal 12 (2012), p. 348–372.

256

chapter A

I

African Union/Organisation of African Unity

40

Decision on Unconstitutional Changes in Member States

CM/Dec. 483 (LXX) 1999, adopted by the oau Council of Ministers, Algiers (Algeria), 8–10 July 1999 (70th Ordinary Session) Council Express its grave concern about the resurgence of coup d’état in Africa; Consequently mandates the Central Organ of the oau Mechanism for Conflict Prevention, Management and Resolution to re-activate, as a matter of urgency, the Committee on Anti-Constitutional Changes, in order to finalise its work in the light of the Harare Declaration, in particular the measures to apply in coup d’état situations occurring in member states; Requests the Secretary-General to report on the matter to its Seventy-second Session.

41 Decision [on Unconstitutional Changes of Government]

41

257

Decision [on Unconstitutional Changes of Government]

AHG/Dec. 142 (XXXV) 1999, adopted by the oau Assembly of Heads of State and Government, Algiers (Algeria), 12–14 July 1999 (35th Ordinary Session) The Assembly […] Determined to promote strong and democratic institutions that will safeguard the principles mentioned in the decision above, 1. Decides that member states whose governments came to power through unconstitutional means after the Harare Summit, should restore constitutional legality before the next Summit; 2. Requests the oau Secretary-General to be actively seized of developments in those countries and to assist in programmes intended to return such countries to constitutional and democratic governments; 3. Calls upon the oau Secretary-General to report to the Ordinary Sessions of the Council of Ministers and the Thirty-sixth Assembly of Heads of State and Government on the progress made in this regard.

258

chapter A

42 Declaration on the Framework for an oau Response to Unconstitutional Changes of Government AHG/Decl. 5 (XXXVI) 2000, adopted by the Assembly of Heads of State and Government, Lomé (Togo), 10–12 July 2000 (36th Ordinary Session) We, Heads of State and Governments of the Organization of African Unity, meeting at the Thirty-sixth Ordinary Session of our Assembly in Lomé, Togo from 10–12 July, 2000 have undertaken a review of the Political Developments on the Continent and in particular the state of consolidating democracy in Africa. We express our grave concern about the resurgence of coup d’état in Africa. We recognize that these developments are a threat to peace and security of the Continent and they constitute a very disturbing trend and serious set back to the ongoing process of democratization in the Continent. We recognize that the phenomenon of coup d’état has resulted in flagrant violations of the basic principles of our Continental Organization and of the United Nations. The phenomenon also contradicts and contravenes the position taken by our Organization in Harare in 1997 following the coup d’état in Sierra Leone, in which we unequivocally condemned and rejected any unconstitutional change of government. We reaffirm that coups are sad and unacceptable developments in our Continent, coming at a time when our people have committed themselves to respect of the rule of law based on peoples will expressed through the ballot and not the bullet. We recall our Decision AHG/Dec.141 (XXXV), adopted during the Thirty-fifth Ordinary Session of our Assembly, in which we unanimously rejected any unconstitutional change as an unacceptable and anachronistic act, which is in contradiction of our commitment to promote democratic principles and conditions. We recall further the mandate by the Seventieth Ordinary Session of the Council of Ministers, held in Algiers, in July 1997, to the Central Organ of the oau Mechanism for Conflict Prevention, Management and Resolution to reactivate, as a matter of urgency, the sub-committee on unconstitutional change, in order to finalize its work in the light of the Harare discussions particularly, as regards the measures to apply in coup d’état situations occurring in Member States. We reaffirm the provisions of the oau Charter and the provisions of the African Charter on Human and Peoples’ Rights. We recognize that the principles of good governance, transparency and human rights are essential elements for building representative and stable governments and can contribute to conflict prevention.

42 OAU RESPONSE TO UNCONSTITUTIONAL CHANGE OF GOVERNMENT (1999) 259

Having reviewed the state of democracy in the Continent, and bearing in mind all our previous Decisions on this issue, as well as our strong determination to put an end to this unacceptable development. We have agreed on the following elements of a Framework for an oau response to Unconstitutional Changes of Government: (a) a set of common values and principles for democratic governance; (b) a definition of what constitutes an unconstitutional change; and (c) measures and actions that the oau would progressively take to respond to an Unconstitutional Change of Government; and (d) an implementation Mechanism. We are of the view that there is need to provide a solid underpinning to the oau’s agenda of promoting democracy and democratic institutions in Africa. Beyond invoking relevant Declarations issued by various sessions of our Assembly and the Council of Ministers, consideration could be given to the elaboration of a set of principles on democratic governance to be adhered to by all Member States of the oau. These principles are not new; they are, as a matter of fact, contained in various documents adopted by our Organization. What is required here is to enumerate them in a coherent manner which will bear witness to our adherence to a common concept of democracy and will lay down the guiding principles for the qualification of a given situation as constituting an unconstitutional change. In this regard, and without being exhaustive, we have also agreed on the following principles as a basis for the articulation of common values and principles for democratic governance in our countries: (i) adoption of a democratic Constitution: its preparation, content and method of revision should be in conformity with generally acceptable principles of democracy; (ii) respect for the Constitution and adherence to the provisions of the law and other legislative enactments adopted by Parliament; (iii) separation of powers and independence of the judiciary; (iv) promotion of political pluralism or any other form of participatory democracy and the role of the African civil society, including enhancing and ensuring gender balance in the political process; (v) the principle of democratic change and recognition of a role for the opposition; (vi) organization of free and regular elections, in conformity with existing texts; (vii) guarantee of freedom of expression and freedom of the press, including guaranteeing access to the media for all political stake-holders;

260

chapter A

(viii) constitutional recognition of fundamental rights and freedoms in conformity with the Universal Declaration of Human Rights of 1948 and the African Charter on Human and Peoples’ Rights of 1981; (ix) guarantee and promotion of human rights. We believe that the strict adherence to these principles and the strengthening of democratic institutions will considerably reduce the risks of unconstitutional change on our Continent. Indeed, experience has shown that unconstitutional changes are sometimes the culmination of a political and institutional crisis linked to nonadherence to the above common values and democratic principles. Our Organization should therefore support all efforts aimed at promoting adherence to these principles. In order to give practical effect to the principles we have enunciated, we have agreed on the following definition of situations that could be considered as situations of unconstitutional change of government: (i) military coup d’état against a democratically elected Government; (ii) intervention by mercenaries to replace a democratically elected Government; (iii) replacement of democratically elected Governments by armed dissident groups and rebel movements; (iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections. We have also decided that: Whenever an unconstitutional change as provided for in the definition of unconstitutional change above, takes place in a Member States, our Current Chairman of the oau and our Secretary-General, on behalf of our Organization, should immediately and publicly condemn such a change and urge for the speedy return to constitutional order. The Current Chairman and the SecretaryGeneral should also convey a clear and unequivocal warning to the perpetrators of the unconstitutional change that, under no circumstances, will their illegal action be tolerated or recognized by the oau. In that regard, the Current Chairman and the Secretary-General should urge for consistency of action at the bilateral, inter-state, sub-regional and international levels. The Central Organ should thereafter convene, as a matter of urgency, to discuss the matter. At the request of its Chairman, the Secretary-General or any oau Member State, the Central Organ may be convened to consider any given situation that could be considered as constituting an unconstitutional change. Following the initial response of condemning the unconstitutional change by the Central Organ:

42 OAU RESPONSE TO UNCONSTITUTIONAL CHANGE OF GOVERNMENT (1999) 261

(a) A period of up to six months should be given to the perpetrators of the unconstitutional change to restore constitutional order. During the six month period, the government concerned should be suspended from participating in the Policy Organs of the oau. Apart from the sanctions provided for under Article 115 of the oau Financial Rules and Regulations, the governments concerned should not participate in meetings of the Central Organ and Sessions of the Council of Ministers and the Assembly of Heads of State and Government. Its exclusion from participating in the oau Policy Organs should not affect the country’s membership in the oau and therefore will not preclude it from honouring its basic obligations towards the Organization including financial contributions to the oau regular budget; (b) The Secretary-General should, during this period gather facts relevant to the unconstitutional change of Government and establish appropriate contacts with the perpetrators with a view to ascertaining their intentions regarding the restoration of constitutional order in the country; the Secretary-General should seek the contribution of African leaders and personalities in the form of discreet moral pressure on the perpetrators of the unconstitutional change in order to get them to cooperate with the oau and facilitate the restoration of constitutional order in the Member State concerned; the Secretary-General should speedily enlist the collaboration of the Regional Grouping to which the “country in crisis” belongs. At the expiration of the six months suspension period, a range of limited and targeted sanctions against the regime that stubbornly refuses to restore constitutional order should be instituted, in addition to the suspension from participation in the oau Policy Organs. This could include visa denials for the perpetrators of an unconstitutional change, restrictions of government-to-government contacts, trade restrictions, etc. In implementing a sanctions regime, the oau should enlist the cooperation of Member States, Regional Groupings and the wider International/Donor Communities. Careful attention should be exercised to ensure that the ordinary citizens of the concerned country do not suffer disproportionately on account of the enforcement of sanctions. In order to give effect to these measures, we have decided that existing oau mechanisms, particularly the Central Organ, at all its three levels, will be the instrument for implementing this Framework for an oau response to unconstitutional changes in Africa. In this regard, we request our Secretary-General to explore how best to enhance the capacity of that Policy Organ to enable it implement in an effective and credible manner, the principles contained in the Framework.

262

chapter A

We have agreed on the establishment of a Central Organ sanctions subcommittee of 5 members chosen on the basis of regional representation. The sub-committee will regularly monitor compliance with Decisions taken on situations of unconstitutional changes and recommend appropriate review measures to the Policy Organs of the oau.

43 OAU DECISION ON UNCONSTITUTIONAL CHANGES OF GOVERNMENT (2000) 263

43

Decision on Unconstitutional Changes of Government in Africa

AHG/Dec. 150 (XXXVI) 2000, adopted by the oau Assembly of Heads of State and Government, Lomé (Togo), 10–12 July 2000 (36th Ordinary Session) The Assembly A.1. Commends the Central Organ and its Sub-Committee on Unconstitu­ tional  Changes of Government in Africa for their work, and the SecretaryGeneral for the efforts deployed to implement the Algiers Decisions; 2. Decides to restrict the definition of unconstitutional changes of government to paragraphs (b) (i–iv) of the “Framework for an oau Response to Unconstitutional Changes of Government” (Doc. Rev1 of the Central Organ); 3. Welcomes the restoration of democratic governance in Niger and Guinea Bissau by their transitional authorities, in compliance with the decision of the Algiers Summit on Unconstitutional Changes of Government and strongly appeals to the international community, particularly the International Finan­ cial Institutions, to lend concrete support for the post-conflict reconstruction of both countries so that their peoples can begin to enjoy the dividends of peace and the fruits of democracy; 4. Adopts the proposed Framework for an oau Response to Unconstitutional Changes of Government; [B]1. Recalls Decision AHG/Dec. 141 (XXXV) adopted during the 35th Ordinary Session of the Assembly rejecting any unconstitutional changes of government in Africa; 2. Reiterates its condemnation of all types of unconstitutional change of government as anachronistic and in contradiction of its commitment to the promotion of democratic principles and constitutional rule; 3. Calls upon the United Nations during the Millennium Summit to join in the rejection of all types of unconstitutional changes anywhere in the world, and to take appropriate measures against their perpetrators.

264

chapter A

44

The New Partnership for Africa’s Development (nepad) – Excerpts

A Programme of the African Union, adopted in Abuja (Nigeria), October 2001 I Introduction 1. This New Partnership for Africa’s Development is a pledge by African leaders, based on a common vision and a firm and shared conviction, that they have a pressing duty to eradicate poverty and to place their countries, both individually and collectively, on a path of sustainable growth and development and, at the same time, to participate actively in the world economy and body politic. The Programme is anchored on the determination of Africans to extricate themselves and the continent from the malaise of underdevelopment and exclusion in a globalising world. 2. The poverty and backwardness of Africa stand in stark contrast to the prosperity of the developed world. The continued marginalisation of Africa from the globalisation process and the social exclusion of the vast majority of its peoples constitute a serious threat to global stability. 3. Historically accession to the institutions of the international community, the credit and aid binomial has underlined the logic of African development. Credit has led to the debt deadlock which, from instalments to rescheduling, still exists and hinders the growth of African countries. The limits of this option have been reached. Concerning the other element of the binomial – aid – we can also note the reduction of private aid and the upper limit of public aid, which is below the target set in the 1970s. 4. In Africa, 340 million people, or half the population, live on less than us $1 per day. The mortality rate of children under 5 years of age is 140 per 1000, and life expectancy at birth is only 54 years. Only 58 per cent of the population have access to safe water. The rate of illiteracy for people over 15 is 41 per cent. There are only 18 mainline telephones per 1000 people in Africa, compared with 146 for the world as a whole and 567 for high-income countries. 5. The New Partnership for Africa’s Development calls for the reversal of this abnormal situation by changing the relationship that underpins it. Africans are appealing neither for the further entrenchment of dependency through aid, nor for marginal concessions. 6. We are convinced that an historic opportunity presents itself to end the scourge of underdevelopment that afflicts Africa. The resources, including capital, technology and human skills, that are required to launch a global war on poverty and underdevelopment exist in abundance and are within our reach. What is required to mobilise these resources and to use them properly, is bold and imaginative leadership that is genuinely committed to a sustained

44 The New Partnership for Africa’s Development

265

human development effort and the eradication of poverty, as well as a new global partnership based on shared responsibility and mutual interest. 7. Across the continent, Africans declare that we will no longer allow ourselves to be conditioned by circumstance. We will determine our own destiny and call on the rest of the world to complement our efforts. There are already signs of progress and hope. Democratic regimes that are committed to the protection of human rights, people-centred development and market-oriented economies are on the increase. African peoples have begun to demonstrate their refusal to accept poor economic and political leadership. These developments are, however, uneven and inadequate and need to be further expedited. 8. The New Partnership for Africa’s Development is about consolidating and accelerating these gains. It is a call for a new relationship of partnership between Africa and the international community, especially the highly industrialised countries, to overcome the development chasm that has widened over centuries of unequal relations. […] III The New Political Will of African Leaders 42. The New Partnership for Africa’s Development recognises that there have been attempts in the past to set out continent-wide development programmes. For a variety of reasons, both internal and external, including questionable leadership and ownership by Africans themselves, these have been less than successful. However, there is today a new set of circumstances, which lend themselves to integrated practical implementation. 43. The new phase of globalisation coincided with the reshaping of international relations in the aftermath of the Cold War. This is associated with the emergence of new concepts of security and self-interest, which encompass the right to development and the eradication of poverty. Democracy and state legitimacy have been redefined to include accountable government, a culture of human rights and popular participation as central elements. 44. Significantly, the numbers of democratically elected leaders are on the increase. Through their actions, they have declared that the hopes of Africa’s peoples for a better life can no longer rest on the magnanimity of others. 45. Across the continent, democracy is spreading, backed by the African Union (au), which has shown a new resolve to deal with conflicts and censure deviation from the norm. These efforts are reinforced by voices in civil society, including associations of women, youth and the independent media. In addition, African governments are much more resolute about regional and continental goals of economic cooperation and integration. This serves both to

266

chapter A

consolidate the gains of the economic turnaround and to reinforce the advantages of mutual interdependence. 46. The changed conditions in Africa have already been recognised by governments across the world. The United Nations Millennium Declaration, adopted in September 2000, confirms the global community’s readiness to support Africa’s efforts to address the continent’s underdevelopment and marginalisation. The Declaration emphasises support for the prevention of conflict and the establishment of conditions of stability and democracy on the continent, as well as for the key challenges of eradicating poverty and disease. The Declaration further points to the global community’s commitment to enhance resource flows to Africa, by improving aid, trade and debt relationships between Africa and the rest of the world, and by increasing private capital flows to the continent. It is now important to translate these commitments into reality. 47. The New Partnership for Africa’s Development centres on African ownership and management. Through this programme, African leaders are setting an agenda for the renewal of the continent. The agenda is based on national and regional priorities and development plans that must be prepared through participatory processes involving the people. We believe that while African leaders derive their mandates from their people, it is their role to articulate these plans and lead the processes of implementation on behalf of their people. 48. The programme is a new framework of interaction with the rest of the world, including the industrialised countries and multilateral organisations. It is based on the agenda set by African peoples through their own initiatives and of their own volition, to shape their own destiny. 49. To achieve these objectives, African leaders will take joint responsibility for the following: – Strengthening mechanisms for conflict prevention, management and resolution at the subregional and continental levels, and to ensure that these mechanisms are used to restore and maintain peace; – Promoting and protecting democracy and human rights in their respective countries and regions, by developing clear standards of accountability, transparency and participatory governance at the national and subnational levels; – Restoring and maintaining macroeconomic stability, especially by developing appropriate standards and targets for fiscal and monetary policies, and introducing appropriate institutional frameworks to achieve these standards; – Instituting transparent legal and regulatory frameworks for financial markets and the auditing of private companies and the public sector;

44 The New Partnership for Africa’s Development

267

– Revitalising and extending the provision of education, technical training and health services, with high priority given to addressing the problem of hiv/aids, malaria and other communicable diseases; – Promoting the role of women in social and economic development by reinforcing their capacity in the domains of education and training; by developing revenue-generating activities through facilitating access to credit; and by assuring their participation in the political and economic life of African countries; – Building the capacity of the states in Africa to set and enforce the legal framework, and to maintain law and order; – Promoting the development of infrastructure, agriculture and its diversification into agro-industries and manufacturing to serve both domestic and export markets. […] V Programme of Action: The Strategy for Achieving Sustainable Development in the 21st Century […] A

A1

Conditions for Sustainable Development

The Peace, Security, Democracy and Political Governance Initiatives

71. African leaders have learned from their own experiences that peace, security, democracy, good governance, human rights and sound economic management are conditions for sustainable development. They are making a pledge to work, both individually and collectively, to promote these principles in their countries and subregions and on the continent. (i)

Peace and Security Initiative

72. The Peace and Security Initiative consists of three elements: – Promoting long-term conditions for development and security; – Building the capacity of African institutions for early warning, as well as enhancing their capacity to prevent, manage and resolve conflicts; – Institutionalising commitment to the core values of the New Partnership for Africa’s Development through the leadership. 73. Long-term conditions for ensuring peace and security in Africa require policy measures for addressing the political and social vulnerabilities on which conflict is premised. These are dealt with by the Political and Economic Governance Initiatives, the Capital Flows and Market Access Initiatives, and the Human Development Initiative.

268

chapter A

74. Efforts to build Africa’s capacity to manage all aspects of conflict must focus on the means necessary to strengthen existing regional and subregional institutions, especially in four key areas: – Prevention, management and resolution of conflict; – Peacemaking, peacekeeping and peace enforcement; – Post-conflict reconciliation, rehabilitation and reconstruction; – Combating the illicit proliferation of small arms, light weapons and landmines. 75. The leadership of the New Partnership for Africa’s Development will consider, within six months of its establishment, setting out detailed and costed measures required in each of the four areas above. The exercise will also include the actions required of partners, and the nature and sources of financing such activities. 76. The envisaged Heads of State Forum will serve as a platform for the leadership of the New Partnership for Africa’s Development to seek to enhance the capacity of African institutions to promote peace and security on the continent, to share experience and to mobilise collective action. The Forum will ensure that the principles and commitments implicit in this initiative are fulfilled. 77. Aware of that requirement, Africans must make all efforts to find a lasting solution to existing conflicts, to strengthen their internal security and to promote peace among the countries. 78. At the Lusaka Summit, the au decided to take drastic measures in reviving the organs responsible for conflict prevention and resolution. (ii)

Democracy and Political Governance Initiative

79. It is generally acknowledged that development is impossible in the absence of true democracy, respect for human rights, peace and good governance. With the New Partnership for Africa’s Development, Africa undertakes to respect the global standards of democracy, the core components of which include political pluralism, allowing for the existence of several political parties and workers’ unions, and fair, open and democratic elections periodically organised to enable people to choose their leaders freely. 80. The purpose of the Democracy and Political Governance Initiative is to contribute to strengthening the political and administrative framework of participating countries, in line with the principles of democracy, transparency, accountability, integrity, respect for human rights and promotion of the rule of law. It is strengthened by and supports the Economic Governance Initiative, with which it shares key features. Taken together, these initiatives will contribute to harnessing the energies of the continent towards development and the eradication of poverty.

44 The New Partnership for Africa’s Development

269

81. The Initiative consists of the following elements: – A series of commitments by participating countries to create or consolidate basic governance processes and practices; – An undertaking by participating countries to take the lead in supporting initiatives that foster good governance; – The institutionalisation of commitments through the leadership of the New Partnership for Africa’s Development to ensure that the core values of the initiative are abided by. 82. The states involved in the New Partnership for Africa’s Development will also undertake a series of commitments towards meeting basic standards of good governance and democratic behaviour while, at the same time, giving support to each other. Participating states will be supported in undertaking such desired institutional reforms where required. Within six months of its institutionalisation, the leadership of the New Partnership for Africa’s Development will identify recommendations on appropriate diagnostic and assessment tools, in support of compliance with the shared goals of good governance, as well as identify institutional weaknesses and seek resources and expertise for addressing these weaknesses. 83. In order to strengthen political governance and build capacity to meet these commitments, the leadership of the New Partnership for Africa’s Development will undertake a process of targeted capacity-building initiatives. These institutional reforms will focus on: – Administrative and civil services; – Strengthening parliamentary oversight; – Promoting participatory decision-making; – Adopting effective measures to combat corruption and embezzlement; – Undertaking judicial reforms. 84. Countries participating in the initiative will take the lead in supporting and building institutions and initiatives that protect these commitments. They will dedicate their efforts towards creating and strengthening national, subregional and continental structures that support good governance. 85. The Heads of State Forum on the New Partnership for Africa’s Devel­opment will serve as a mechanism through which the leadership of the New Partnership for Africa’s Development will periodically monitor and assess the progress made by African countries in meeting their commitment towards achieving good governance and social reforms. The Forum will also provide a platform for countries to share experiences with a view to fostering good governance and democratic practices. […]

270

chapter A

45 African Union Declaration on the Principles Governing Democratic Elections in Africa AHG/Decl.1 (XXXVIII) 2002, adopted by the Assembly of Heads of State and Government, Durban (South Africa), 8 July 2002 (38th Ordinary Session) I Preamble We, the Heads of State and Government of the Organization of African Unity, meeting in Durban, South Africa, at the 38th Ordinary Session of the Assembly of the oau, have considered the Report of the Secretary General on strengthening the role of the oau in election observation and monitoring and the advancement of the democratization process. Considering the principles and objectives of the African Union enshrined in the Constitutive Act of the African Union, particularly in its Articles 3 and 4; Reaffirming the Algiers Decision of July 1999 and the Lomé Declaration of July 2000 on the Framework for an oau response to unconstitutional changes of government, which laid down a set of common values and principles for democratic governance; Considering the cssdca Solemn Declaration adopted by the Assembly of Heads of State and Government of the oau in Lomé, Togo, in July 2000, which underpins the oau’s agenda of promoting democracy and democratic institutions in Africa; Considering the New African Initiative (nai) now referred to as the New Partnership for the African’s Development (nepad) adopted by the Assembly of the Heads of State and Government in Lusaka, Zambia, in July 2001, by which, through the Democracy and Political Governance Initiative, African Leaders undertook to promote and protect democracy and human rights in their respective countries and regions, by developing clear standards of accountability and participatory governance at the national and sub-regional levels; Reaffirming the importance of the Universal Declaration of Human Rights adopted in December 1948, as well as the International Covenant on Civil and Political Rights adopted in December 1966, which recognized the will of the people expressed through free and fair elections as the basis of the authority of government; Reaffirming also the significance of the African Charter on Human and Peoples’ Rights adopted in Nairobi, Kenya, in June 1981, which recognized the right of every citizen to participate freely in the government of his or her country whether directly or through democratically elected representatives; Recalling the Declaration of the Assembly of Heads of State and Government of the Organization of African Unity on the Political and Socio-economic

45 AU DECLARATION: ELECTIONS IN AFRICA

271

Situation in Africa and the Fundamental Changes Taking Place in the World, adopted in Addis Ababa, Ethiopia, in July 1990 wherein oau Member States undertook to continue with the democratization of African societies and the consolidation of the democratic institutions; Recalling further the African Charter for Popular Participation in Development adopted in Addis Ababa, Ethiopia, in July 1990, which emphasized the need to involve the people of Africa in the spheres of economic and political governance; Referring to the Cairo Agenda for Action adopted in Cairo, Egypt, in 1995, which stressed the imperative of ensuring good governance through popular participation based on the respect for human rights and dignity, free and fair elections, as well as on the respect of the principles of freedom of the press, speech, association and conscience; Cognizant of the fact that each Member State has the sovereign right to choose its political system in accordance with the will of its people and in conformity with the Constitutive Act of the African Union and the universally accepted principles of democracy; Considering the ever-growing role already played by the oau in the observation/monitoring of elections and the need to strengthen the Organization’s efforts in advancing democracy in Africa; Agree and endorse the following Principles Governing Democratic Elections in Africa: II Principles of Democratic Elections 1. Democratic elections are the basis of the authority of any representative government; 2. Regular elections constitute a key element of the democratization process and therefore, are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development; 3. The holding of democratic elections is an important dimension in conflict prevention, management and resolution; 4. Democratic elections should be conducted: (a) freely and fairly; (b) under democratic constitutions and in compliance with supportive legal instruments; (c) under a system of separation of powers that ensures in particular, the independence of the judiciary; (d) at regular intervals, as provided for in National Constitutions; (e) by impartial, all-inclusive competent accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistics;

272

chapter A

III Responsibilities of the Member States We commit our Governments to: (a) take necessary measures to ensure the scrupulous implementation of the above principles, in accordance with the constitutional processes of our respective countries; (b) establish where none exist, appropriate institutions where issues such as codes of conduct, citizenship, residency, age requirements for eligible voters, compilation of voters’ registers, etc. would be addressed; (c) establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel, as well as competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections; (d) safeguard the human and civil liberties of all citizens including the freedom of movement, assembly, association, expression, and campaigning as well as access to the media on the part of all stakeholders, during electoral processes; (e) promote civic and voters’ education on the democratic principles and values in close cooperation with the civil society groups and other relevant stakeholders; (f) take all necessary measures and precautions to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, in order to maintain peace and security; (g) ensure the availability of adequate logistics and resources for carrying out democratic elections, as well as ensure that adequate provision of funding for all registered political parties to enable them organise their work, including participation in electoral process; (h) ensure that adequate security is provided to all parties participating in elections; (i) ensure the transparency and integrity of the entire electoral process by facilitating the deployment of representatives of political parties and individual candidates at polling and counting stations and by accrediting national and/other observers/monitors; (j) encourage the participation of African women in all aspects of the electoral process in accordance with the national laws. IV Elections: Rights and Obligations We reaffirm the following rights and obligations under which democratic elections are conducted: 1. Every citizen shall have the right to participate freely in the government of his or her country, either directly or through freely elected representatives in accordance with the provisions of the law.

45 AU DECLARATION: ELECTIONS IN AFRICA

273

2. Every citizen has the right to fully participate in the electoral processes of the country, including the right to vote or be voted for, according to the laws of the country and as guaranteed by the Constitution, without any kind of discrimination. 3. Every citizen shall have the right to free association and assembly in accordance with the law. 4. Every citizen shall have the freedom to establish or to be a member of a political party or Organization in accordance with the law. 5. Individuals or political parties shall have the right to freedom of movement, to campaign and to express political opinions with full access to the media and information within the limits of the laws of the land. 6. Individual or political parties shall have the right to appeal and to obtain timely hearing against all proven electoral malpractices to the competent judicial authorities in accordance with the electoral laws of the country. 7. Candidates or political parties shall have the right to be represented at polling and counting stations by duly designated agents or representatives. 8. No individual or political party shall engage in any act that may lead to violence or deprive others of their constitutional rights and freedoms. Hence all stakeholders should refrain from, among others, using abusive language and/ or incitement to hate or defamatory allegations and provocative language. These acts should be sanctioned by designated electoral authorities. 9. All stakeholders in electoral contests shall publicly renounce the practice of granting favours, to the voting public for the purpose of influencing the outcome of elections. 10. In covering the electoral process, the media should maintain impartiality and refrain from broadcasting and publishing abusive language, incitement to hate, and other forms of provocative language that may lead to violence. 11. Every candidate and political party shall respect the impartiality of the public media by undertaking to refrain from any act which might constrain or limit their electoral adversaries from using the facilities and resources of the public media to air their campaign messages. 12. Every individual and political party participating in elections shall recognize the authority of the Electoral Commission or any statutory body empowered to oversee the electoral process and accordingly render full cooperation to such a Commission/Body in order to facilitate their duties. 13. Every citizen and political party shall accept the results of elections proclaimed to have been free and fair by the competent national bodies as provided for in the Constitution and the electoral laws and accordingly respect the final decision of the competent Electoral Authorities or, challenge the result appropriately according to the law.

274

chapter A

V Election Observation and Monitoring by the oau We request the oau to be fully engaged in the strengthening of the democratization process, particularly by observing and monitoring elections in our Member States, according to the following guidelines: 1. The observation and monitoring of elections shall be undertaken subject to a memorandum of understanding between the oau General Secretariat and the host country in accordance with the principles enshrined in this Declaration and the laws of the host country. 2. In performing their obligations, the election observers or monitors shall be guided by detailed guidelines to be prepared by the General Secretariat drawing inspiration from the essential thrust of this declaration, the specific mandates and terms of reference determined by the particular case in question as well as the wider legal framework of the country staging elections. 3. Member States should ensure that invitations to the oau to participate in election observation or monitoring are sent at least two months before the date of the election. 4. Member States should refrain from imposing any fees and/or charges on oau observers i.e. registration/accreditation fees etc. and facilitate easy access of observers/monitors to locations of electoral events/activities and unhindered in the performance of their tasks. 5. The General Secretariat shall have the right to decline invitations to monitor elections which in its considered opinion, do not measure up to the normative standards enunciated in this Declaration. VI Role and Mandate of the General Secretariat Further request the oau Secretary General to take all necessary measures to ensure the implementation of this Declaration by undertaking, in particular, the following activities: (a) Strengthen its role in the observation and monitoring of elections within the legal framework of the host country, in accordance with the memorandum of understanding reached with that country; (b) Mobilize extra-budgetary funds to augment the General Secretariat resource base so as to facilitate the implementation of this Declaration; (c) Undertake a feasibility study on the establishment of a Democratization and Electoral Assistance Fund, to facilitate a successful implementation of this Declaration; (d) Undertake a feasibility study on the establishment within the oau General Secretariat of a Democratization and Election Monitoring Unit that will also discharge issues on good governance; (e) Compile and maintain a roster of African Experts in the field of election observation and monitoring and democratization in general in order

45 AU DECLARATION: ELECTIONS IN AFRICA

275

to deploy competent and professional observers and to avails itself of their services whenever necessary. Member States on their part are requested to assist by making the names of their experts available to the General Secretariat; (f) Work out better standards of procedures, preparations and treatment for personnel selected to serve on oau observer missions; (g) Promote cooperation and work in partnership with African Organizations and International Organizations, as well as national institutions, non-governmental Organizations and civil society groups involved in the elected monitoring and observation work; (h) Publish and make the General Secretariat Reports on the observation/ monitoring of elections and other related activities open to all Member States and the public at large, as a means of consolidating electoral and democratic processes on the continent.

276

chapter A

46 Declaration on Democracy, Political, Economic and Corporate Governance – Excerpts AHG/235 (XXXVIII), adopted by the Assembly of Heads of State and Government, Durban (South Africa), 18 June 2002 (38th Ordinary Session) Preamble 1. We, the participating Heads of State and Government of the member states of the African Union (au), met in Durban, South Africa, at the inaugural Assembly of the African Union and considered the report of the New Partnership for Africa´s Development (nepad) Heads of State and Government Implementation Committee established at the Organization of African Unity (oau) Summit in Lusaka, Zambia, in July 2001. 2. In the general context of our meeting, we recalled our shared commitment underlying the establishment of nepad to eradicate poverty and to place our countries, individually and collectively, on a path of sustainable growth and development and, at the same time, to participate actively in the world economy and body politic on equal footing. We reaffirm this pledge as our most pressing duty. 3. In reviewing the report of the nepad Heads of State and Government Implementation Committee and considering the way forward, we were also mindful of the fact that, over the years, successive oau Summits have taken decisions aimed at ensuring stability, peace and security, promoting closer economic integration, ending unconstitutional changes of government, supporting human rights and upholding the rule of law and good governance. Among these decisions are: a. the Lagos Plan of Action, and the Final Act of Lagos (1980); b. the African (Banjul) Charter on Human and Peoples´ Rights (1981); c. the African Charter for Popular Participation in Development (1990); d. the Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World (1990); and e. the African Charter on the Rights and Welfare of the Child (1990); f. the Abuja Treaty establishing the African Economic Community (1991); g. the 1993 Cairo Declaration Establishing the Mechanism for Conflict Prevention, Management and Resolution; h. the Protocol on the Establishment of an African Court on Human and Peoples´ Rights (1998); i. the 1999 Grand Bay (Mauritius) Declaration and Plan of Action for the Promotion and Protection of Human Rights;

46 AU DECLARATION ON DEMOCRACY ETC.

277

j. the Framework for an oau Response to Unconstitutional Changes of Government (adopted at the 2000 oau Summit in Lomé, Togo, and based on the earlier decision of the 1999 Algiers oau Summit); and k. the Conference on Security, Stability, Development and Cooperation (cssdca) Solemn Declaration (2000); and l. the Constitutive Act of the African Union (2000). 4. We, member states parties to the aforementioned instruments, reaffirm our full and continuing commitment to these and other decisions of our continental organization, as well as the other international obligations and undertakings into which we have entered in the context of the United Nations. Of particular significance in this context are the Charter of the United Nations and the United Nations Universal Declaration on Human Rights and all conventions relating thereto, especially the Convention on the Elimination of All Forms of Discrimination against Women and the Beijing Declaration. 5. Africa faces grave challenges and the most urgent of these are the eradication of poverty and the fostering of socio-economic development, in particular, through democracy and good governance. It is to the achievement of these twin objectives that the nepad process is principally directed. 6. Accordingly, we the participating Heads of State and Government of the memberstates of the African Union have agreed to work together in policy and action inpursuit of the following objectives: – Democracy and Good Political Governance – Economic and Corporate Governance – Socio-Economic Development – African Peer Review Mechanism Democracy and Good Political Governance 7. At the beginning of the new century and millennium, we reaffirm our commitment to the promotion of democracy and its core values in our respective countries. In particular, we undertake to work with renewed determination to enforce – the rule of law; – the equality of all citizens before the law and the liberty of the individual; – individual and collective freedoms, including the right to form and join political parties and trade unions, in conformity with the constitution; – equality of opportunity for all; – the inalienable right of the individual to participate by means of free, credible and democratic political processes in periodically electing their leaders for a fixed term of office; and – adherence to the separation of powers, including the protection of the independence of the judiciary and of effective parliaments.

278

chapter A

8. We believe in just, honest, transparent, accountable and participatory government and probity in public life. We therefore undertake to combat and eradicate corruption, which both retards economic development and undermines the moral fabric of society. 9. We are determined to increase our efforts in restoring stability, peace and security in the African continent, as these are essential conditions for sustainable development, alongside democracy, good governance, human rights, social development, protection of environment and sound economic management. Our efforts and initiatives will also be directed at seeking speedy peaceful solutions to current conflicts and at building Africa´s capacity to prevent, manage and resolve all conflicts on the continent. 10. In the light of Africa’s recent history, respect for human rights has to be accorded an importance and urgency all of its own. One of the tests by which the quality of a democracy is judged is the protection it provides for each individual citizen and for the vulnerable and disadvantaged groups. Ethnic minorities, women and children have borne the brunt of the conflicts raging on the continent today. We undertake to do more to advance the cause of human rights in Africa generally and, specifically, to end the moral shame exemplified by the plight of women, children, the disabled and ethnic minorities in conflict situations in Africa. 11. In Africa’s efforts at democracy, good governance and economic reconstruction, women have a central role to play. We accept it as a binding obligation to ensure that women have every opportunity to contribute on terms of full equality to political and socio-economic development in all our countries. 12. To fulfil these commitments we have agreed to adopt the following action plan: 13. In support of democracy and the democratic process We will: – ensure that our respective national constitutions reflect the democratic ethos and provide for demonstrably accountable governance; – promote political representation, thus providing for all citizens to participate in the political process in a free and fair political environment; – enforce strict adherence to the position of the African Union (au) on unconstitutional changes of government and other decisions of our continental organization aimed at promoting democracy, good governance, peace and security; – strengthen and, where necessary, establish an appropriate electoral administration and oversight bodies, in our respective countries and provide the necessary resources and capacity to conduct elections which are free, fair and credible; – reassess and where necessary strengthen the au and sub-regional election monitoring mechanisms and procedures; and

46 AU DECLARATION ON DEMOCRACY ETC.

279

– heighten public awareness of the African Charter on Human and Peoples´ Rights, especially in our educational institutions. 14. In support of Good Governance We have agreed to: – adopt clear codes, standards and indicators of good governance at the national, sub-regional and continental levels; – accountable, efficient and effective civil service; – ensure the effective functioning of parliaments and other accountability institutions in our respective countries, including parliamentary committees and anti-corruption bodies; and – ensure the independence of the judicial system that will be able to prevent abuse of power and corruption. 15. To promote and protect human rights We have agreed to: – facilitate the development of vibrant civil society organizations, including strengthening human rights institutions at the national, sub-regional and regional levels; – support the Charter, African Commission and Court on Human and People´s Rights as important instruments for ensuring the promotion, protection and observance of Human Rights; – strengthen co-operation with the un High Commission for Human Rights; and – ensure responsible free expression, inclusive of the freedom of the press. […]

280 47

chapter A

African Charter on Democracy, Elections and Governance

Adopted by the Assembly of the African Union, Addis Ababa (Ethiopia), 30 January 2007; in force since 15 February 2012 (8th Ordinary Session)1 Preamble We, the Member States of the African Union (au); Inspired by the objectives and principles enshrined in the Constitutive Act of the African Union, particularly Articles 3 and 4, which emphasise the significance of good governance, popular participation, the rule of law and human rights; Recognising the contributions of the African Union and Regional Economic Communities to the promotion, nurturing, strengthening and consolidation of democracy and governance; Reaffirming our collective will to work relentlessly to deepen and consolidate the rule of law, peace, security and development in our countries; Guided by our common mission to strengthen and consolidate institutions for good governance, continental unity and solidarity; Committed to promote the universal values and principles of democracy, good governance, human rights and the right to development; Cognizant of the historical and cultural conditions in Africa; Seeking to entrench in the Continent a political culture of change of power based on the holding of regular, free, fair and transparent elections conducted by competent, independent and impartial national electoral bodies; Concerned about the unconstitutional changes of governments that are one of the essential causes of insecurity, instability and violent conflict in Africa; Determined to promote and strengthen good governance through the institutionalization of transparency, accountability and participatory democracy; Convinced of the need to enhance the election observation missions in the role they play, particularly as they are an important contributory factor to ensuring the regularity, transparency and credibility of elections; Desirous to enhance the relevant Declarations and Decisions of the oau/au (including the 1990 Declaration on the political and socio-economic situation in Africa and the fundamental changes taking place in the world, the 1995 Cairo Agenda for the Re-launch of Africa’s Economic and Social Development, the 1999 Algiers Declaration on Unconstitutional Changes of Government, the 2000 Lomé Declaration for an oau Response to Unconstitutional Changes of Government, the 2002 oau/au Declaration on Principles Governing Democratic Elections in Africa, the 2003 Protocol Relating to the Establishment of the Peace and Security Council of the African Union); 1 http://www.au.int/en/treaties.

47 African Charter on Democracy, Elections and Governance

281

Committed to implementing Decision EX.CL/Dec.31(III) adopted in Maputo, Mozambique, in July 2003 and Decision EX.CL/124(V) adopted in Addis Ababa, Ethiopia, in May 2004 respectively, by the adoption of an African Charter on Democracy, Elections and Governance;

Have Agreed as Follows:



Chapter 1. Definitions

Article 1 In this Charter, unless otherwise stated, the following expressions shall have the following meaning: “au” means the African Union; “African Human Rights Commission” means the African Commission on Human and Peoples’ Rights; “African Peer Review Mechanism” aprm means the African Peer Review Mechanism; “Assembly” means the Assembly of Heads of State and Government of the African Union; “Commission” means the Commission of the Union; “Constitutive Act” means the Constitutive Act of the Union; “Charter” means the African Charter on Democracy, Elections and Governance; “Member States” means the Member States of the African Union; “National Electoral Body” means a competent authority, established by the relevant legal instruments of a State Party, responsible for organizing and supervising elections; “nepad” means the New Partnership for Africa’s Development; “Peace and Security Council” means the Peace and Security Council of the African Union; “Regional Economic Communities” means the regional integration blocs of the African Union; “State Party” means any Member State of the African Union which has ratified or acceded to this Charter and deposited the instruments for ratification or accession with the Chairperson of the African Union Commission; “Union” means the African Union.

Chapter 2. Objectives

Article 2 The objectives of this Charter are to:

282

chapter A

1. Promote adherence, by each State Party, to the universal values and principles of democracy and respect for human rights; 2. Promote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the Constitution and constitutional order in the political arrangements of the State Parties; 3. Promote the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments; 4. Prohibit, reject and condemn unconstitutional change of government in any Member State as a serious threat to stability, peace, security and development; 5. Promote and protect the independence of the judiciary; 6. Nurture, support and consolidate good governance by promoting democratic culture and practice, building and strengthening governance institutions and inculcating political pluralism and tolerance; 7. Encourage effective coordination and harmonization of governance policies amongst State Parties with the aim of promoting regional and continental integration; 8. Promote State Parties’ sustainable development and human security; 9. Promote the fight against corruption in conformity with the provisions of the au Convention on Preventing and Combating Corruption adopted in Maputo, Mozambique in July 2003; 10. Promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs; 11. Promote gender balance and equality in the governance and development processes; 12. Enhance cooperation between the Union, Regional Economic Communities and the International Community on democracy, elections and governance; and 13. Promote best practices in the management of elections for purposes of political stability and good governance.

Chapter 3. Principles

Article 3 State Parties shall implement this Charter in accordance with the following principles: 1. Respect for human rights and democratic principles; 2. Access to and exercise of state power in accordance with the constitution of the State Party and the principle of the rule of law; 3. Promotion of a system of government that is representative;

47 African Charter on Democracy, Elections and Governance

283

4. Holding of regular, transparent, free and fair elections; 5. Separation of powers; 6. Promotion of gender equality in public and private institutions; 7. Effective participation of citizens in democratic and development processes and in governance of public affairs; 8. Transparency and fairness in the management of public affairs; 9. Condemnation and rejection of acts of corruption, related offenses and impunity; 10. Condemnation and total rejection of unconstitutional changes of government; 11. Strengthening political pluralism and recognising the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law.

Chapter 4. Democracy, Rule of Law and Human Rights

Article 4 1. State Parties shall commit themselves to promote democracy, the principle of the rule of law and human rights. 2. State Parties shall recognize popular participation through universal suffrage as the inalienable right of the people. Article 5 State Parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power. Article 6 State Parties shall ensure that citizens enjoy fundamental freedoms and human rights taking into account their universality, interdependence and indivisibility. Article 7 State Parties shall take all necessary measures to strengthen the Organs of the Union that are mandated to promote and protect human rights and to fight impunity and endow them with the necessary resources. Article 8 1. State Parties shall eliminate all forms of discrimination, especially those based on political opinion, gender, ethnic, religious and racial grounds as well as any other form of intolerance.

284

chapter A

2. State Parties shall adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups. 3. State Parties shall respect ethnic, cultural and religious diversity, which contributes to strengthening democracy and citizen participation. Article 9 State Parties undertake to design and implement social and economic policies and programmes that promote sustainable development and human security. Article 10 1. State Parties shall entrench the principle of the supremacy of the constitution in the political organization of the State. 2. State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum. 3. State Parties shall protect the right to equality before the law and equal protection by the law as a fundamental precondition for a just and democratic society.

Chapter 5. The Culture of Democracy and Peace

Article 11 The State Parties undertake to develop the necessary legislative and policy frameworks to establish and strengthen a culture of democracy and peace. Article 12 State Parties undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace. To this end, State Parties shall: 1. Promote good governance by ensuring transparent and accountable administration. 2. Strengthen political institutions to entrench a culture of democracy and peace. 3. Create conducive conditions for civil society organizations to exist and operate within the law. 4. Integrate civic education in their educational curricula and develop appropriate programmes and activities.

47 African Charter on Democracy, Elections and Governance

285

Article 13 State Parties shall take measures to ensure and maintain political and social dialogue, as well as public trust and transparency between political leaders and the people, in order to consolidate democracy and peace.

Chapter 6. Democratic Institutions

Article 14 1. State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces to ensure the consolidation of democracy and constitutional order. 2. State Parties shall take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law. 3. State Parties shall cooperate with each other to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law. Article 15 1. State Parties shall establish public institutions that promote and support democracy and constitutional order. 2. State Parties shall ensure that the independence or autonomy of the said institutions is guaranteed by the constitution. 3. State Parties shall ensure that these institutions are accountable to competent national organs. 4. State Parties shall provide the above-mentioned institutions with resources to perform their assigned missions efficiently and effectively. Article 16 State Parties shall cooperate at regional and continental levels in building and consolidating democracy through exchange of experiences.

Chapter 7. Democratic Elections

Article 17 State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa. To this end, State Parties shall:

286

chapter A

1. Establish and strengthen independent and impartial national electoral bodies responsible for the management of elections. 2. Establish and strengthen national mechanisms that redress election-related disputes in a timely manner. 3. Ensure fair and equitable access by contesting parties and candidates to state controlled media during elections. 4. Ensure that there is a binding code of conduct governing legally recognized political stakeholders, government and other political actors prior, during and after elections. The code shall include a commitment by political stakeholders to accept the results of the election or challenge them in through exclusively legal channels. Article 18 1. State Parties may request the Commission, through the Democracy and Electoral Assistance Unit and the Democracy and Electoral Assistance Fund, to provide advisory services or assistance for strengthening and developing their electoral institutions and processes. 2. The Commission may at any time, in consultation with the State Party concerned, send special advisory missions to provide assistance to that State Party for strengthening its electoral institutions and processes. Article 19 1. Each State Party shall inform the Commission of scheduled elections and invite it to send an electoral observer mission. 2. Each State Party shall guarantee conditions of security, free access to information, non-interference, freedom of movement and full cooperation with the electoral observer mission. Article 20 The Chairperson of the Commission shall first send an exploratory mission during the period prior to elections. This mission shall obtain any useful information and documentation, and brief the Chairperson, stating whether the necessary conditions have been established and if the environment is conducive to the holding of transparent, free and fair elections in conformity with the principles of the Union governing democratic elections. Article 21 1. The Commission shall ensure that these missions are independent and shall provide them with the necessary resources for that purpose. 2. Electoral observer missions shall be conducted by appropriate and competent experts in the area of election monitoring, drawn from continental and

47 African Charter on Democracy, Elections and Governance

287

national institutions such as, but not limited to, the Pan-African Parliament, national electoral bodies, national legislatures and eminent persons taking due cognizance of the principles of regional representation and gender equality. 3. Electoral observer missions shall be conducted in an objective, impartial and transparent manner. 4. All electoral observer missions shall present the report of their activities to the Chairperson of the Commission within a reasonable time. 5. A copy of the report shall be submitted to the State Party concerned within a reasonable time. Article 22 State Parties shall create a conducive environment for independent and impartial national monitoring or observation mechanisms. Chapter 8. Sanctions in Cases of Unconstitutional Changes of Government Article 23 State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union: 1. Any putsch or coup d’Etat against a democratically elected government. 2. Any intervention by mercenaries to replace a democratically elected government. 3. Any replacement of a democratically elected government by armed dissidents or rebels. 4. Any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or 5. Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government. Article 24 When a situation arises in a State Party that may affect its democratic political institutional arrangements or the legitimate exercise of power, the Peace and Security Council shall exercise its responsibilities in order to maintain the constitutional order in accordance with relevant provisions of the Protocol. Relating to the Establishment of the Peace and Security Council of the African Union, hereinafter referred to as the Protocol.

288

chapter A

Article 25 1. When the Peace and Security Council observes that there has been an unconstitutional change of government in a State Party, and that diplomatic initiatives have failed, it shall suspend the said State Party from the exercise of its right to participate in the activities of the Union in accordance with the provisions of articles 30 of the Constitutive Act and 7 (g) of the Protocol. The suspension shall take effect immediately. 2. However, the suspended State Party shall continue to fulfill its obligations to the Union, in particular with regard to those relating to respect of human rights. 3. Notwithstanding the suspension of the State Party, the Union shall maintain diplomatic contacts and take any initiatives to restore democracy in that State Party. 4. The perpetrators of unconstitutional change of government shall not be allowed to participate in elections held to restore the democratic order or hold any position of responsibility in political institutions of their State. 5. Perpetrators of unconstitutional change of government may also be tried before the competent court of the Union. 6. The Assembly shall impose sanctions on any Member State that is proved to have instigated or supported unconstitutional change of government in another state in conformity with Article 23 of the Constitutive Act. 7. The Assembly may decide to apply other forms of sanctions on perpetrators of unconstitutional change of government including punitive economic measures. 8. State Parties shall not harbour or give sanctuary to perpetrators of unconstitutional changes of government. 9. State Parties shall bring to justice the perpetrators of unconstitutional changes of government or take necessary steps to effect their extradition. 10. State Parties shall encourage conclusion of bilateral extradition agreements as well as the adoption of legal instruments on extradition and mutual legal assistance. Article 26 The Peace and Security Council shall lift sanctions once the situation that led to the suspension is resolved.

Chapter 9. Political, Economic and Social Governance

Article 27 In order to advance political, economic and social governance, State Parties shall commit themselves to:

47 African Charter on Democracy, Elections and Governance

289

1. Strengthening the capacity of parliaments and legally recognised political parties to perform their core functions; 2. Fostering popular participation and partnership with civil society organizations; 3. Undertaking regular reforms of the legal and justice systems; 4. Improving public sector management; 5. Improving efficiency and effectiveness of public services and combating corruption; 6. Promoting the development of the private sector through, inter alia, enabling legislative and regulatory framework; 7. Development and utilisation of information and communication technologies; 8. Promoting freedom of expression, in particular freedom of the press and fostering a professional media; 9. Harnessing the democratic values of the traditional institutions; and 10. Preventing the spread and combating the impact of diseases such as Malaria, Tuberculosis, hiv/aids, Ebola fever, and Avian Flu. Article 28 State Parties shall ensure and promote strong partnerships and dialogue between government, civil society and private sector. Article 29 1. State Parties shall recognize the crucial role of women in development and strengthening of democracy. 2. State Parties shall create the necessary conditions for full and active participation of women in the decision-making processes and structures at all levels as a fundamental element in the promotion and exercise of a democratic culture. 3. State Parties shall take all possible measures to encourage the full and active participation of women in the electoral process and ensure gender parity in representation at all levels, including legislatures. Article 30 State Parties shall promote citizen participation in the development process through appropriate structures. Article 31 1. State Parties shall promote participation of social groups with special needs, including the Youth and people with disabilities, in the governance process.

290

chapter A

2. State Parties shall ensure systematic and comprehensive civic education in order to encourage full participation of social groups with special needs in democracy and development processes. Article 32 State Parties shall strive to institutionalize good political governance through: 1. Accountable, efficient and effective public administration; 2. Strengthening the functioning and effectiveness of parliaments; 3. An independent judiciary; 4. Relevant reforms of public institutions including the security sector; 5. Harmonious relationships in society including civil-military relations; 6. Consolidating sustainable multiparty political systems; 7. Organising regular, free and fair elections; and 8. Entrenching and respecting the principle of the rule of law. Article 33 State Parties shall institutionalize good economic and corporate governance through, inter alia: 1. Effective and efficient public sector management; 2. Promoting transparency in public finance management; 3. Preventing and combating corruption and related offences; 4. Efficient management of public debt; 5. Prudent and sustainable utilization of public resources; 6. Equitable allocation of the nation’s wealth and natural resources; 7. Poverty alleviation; 8. Enabling legislative and regulatory framework for private sector development; 9. Providing a conducive environment for foreign capital inflows; 10. Developing tax policies that encourage investment; 11. Preventing and combating crime; 12. Elaborating and implementing economic development strategies including private-public sector partnerships; 13. An efficient and effective tax system premised upon transparency and accountability. Article 34 State Parties shall decentralize power to democratically elected local authorities as provided in national laws.

47 African Charter on Democracy, Elections and Governance

291

Article 35 Given the enduring and vital role of traditional authorities, particularly in rural communities, the State Parties shall strive to find appropriate ways and means to increase their integration and effectiveness within the larger democratic system. Article 36 State Parties shall promote and deepen democratic governance by implementing the principles and core values of the nepad Declaration on Democracy, Political, Economic and Corporate Governance and, where applicable, the African Peer Review Mechanism (aprm). Article 37 State Parties shall pursue sustainable development and human security through achievement of nepad objectives and the United Nations Millennium Development Goals (mdgs). Article 38 1. State Parties shall promote peace, security and stability in their respective countries, regions and in the continent by fostering participatory political systems with well-functioning and, if need be, inclusive institutions. 2. State Parties shall promote solidarity amongst Member States and support the conflict prevention and resolution initiatives that the Union may undertake in conformity with the Protocol establishing the Peace and Security Council. Article 39 State Parties shall promote a culture of respect, compromise, consensus and tolerance as a means to mitigate conflicts, promote political stability and security, and to harness the creative energies of the African peoples. Article 40 State Parties shall adopt and implement policies, strategies and programmes required to generate productive employment, mitigate the impact of diseases and alleviate poverty and eradicate extreme poverty and illiteracy. Article 41 State Parties shall undertake to provide and enable access to basic social services to the people.

292

chapter A

Article 42 State Parties shall implement policies and strategies to protect the environment to achieve sustainable development for the benefit of the present and future generations. In this regard, State Parties are encouraged to accede to the relevant treaties and other international legal instruments. Article 43 1. State Parties shall endeavour to provide free and compulsory basic education to all, especially girls, rural inhabitants, minorities, people with disabilities and other marginalized social groups. 2. In addition, State Parties shall ensure the literacy of citizens above compulsory school age, particularly women, rural inhabitants, minorities, people with disabilities, and other marginalized social groups.

Chapter 10. Mechanisms for Application

Article 44 To give effect to the commitments contained in this Charter: 1 Individual State Party Level State Parties commit themselves to implement the objectives, apply the principles and respect the commitments enshrined in this Charter as follows: a. State Parties shall initiate appropriate measures including legislative, executive and administrative actions to bring State Parties’ national laws and regulations into conformity with this Charter; b. State Parties shall take all necessary measures in accordance with constitutional provisions and procedures to ensure the wider dissemination of the Charter and all relevant legislation as may be necessary for the implementation of its fundamental principles; c. State Parties shall promote political will as a necessary condition for the attainment of the goals set forth in this Charter; d. State Parties shall incorporate the commitments and principles of the Charter in their national policies and strategies. 2 Commission Level A. At Continental Level a. The Commission shall develop benchmarks for implementation of the commitments and principles of this Charter and evaluate compliance by State Parties; b. The Commission shall promote the creation of favourable conditions for democratic governance in the African Continent, in particular by facilitating the harmonization of policies and laws of State Parties;

47 African Charter on Democracy, Elections and Governance

293

c. The Commission shall take the necessary measures to ensure that the Democracy and Electoral Assistance Unit and the Democracy and Electoral Assistance Fund provide the needed assistance and resources to State Parties in support of electoral processes; d. The Commission shall ensure that effect is given to the decisions of the Union in regard to unconstitutional change of government on the Continent. B At Regional Level The Commission shall establish a framework for cooperation with Regional Economic Communities on the implementation of the principles of the Charter. In this regard, it shall commit the Regional Economic Communities (recs) to: a. Encourage Member States to ratify or adhere to this Charter; b. Designate focal points for coordination, evaluation and monitoring of the implementation of the commitments and principles enshrined in this Charter in order to ensure massive participation of stakeholders, particularly civil society organizations, in the process. Article 45 The Commission shall: a. Act as the central coordinating structure for the implementation of this Charter; b. Assist State Parties in implementing the Charter; c. Coordinate evaluation on implementation of the Charter with other key organs of the Union including the Pan-African Parliament, the Peace and Security Council, the African Human Rights Commission, the A ­ frican Court of Justice and Human Rights, the Economic, Social and Cultural Council, the Regional Economic Communities and appropriate nationallevel structures.

Chapter 11. Final Clauses

Article 46 In conformity with applicable provisions of the Constitutive Act and the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, the Assembly and the Peace and Security Council shall determine the appropriate measures to be imposed on any State Party that violates this Charter.

294

chapter A

Article 47 1. This Charter shall be open for signature, ratification and accession by Member States of the Union in accordance with their respective constitutional procedures. 2. The instruments of ratification or accession shall be deposited with the Chairperson of the Commission. Article 48 This Charter shall enter into force thirty (30) days after the deposit of fifteen (15) Instruments of Ratification. Article 49 1. State Parties shall submit every two years, from the date the Charter comes into force, a report to the Commission on the legislative or other relevant measures taken with a view to giving effect to the principles and commitments of the Charter. 2. A copy of the report shall be submitted to the relevant organs of the Union for appropriate action within their respective mandates. 3. The Commission shall prepare and submit to the Assembly, through the Executive Council, a synthesized report on the implementation of the Charter. 4. The Assembly shall take appropriate measures aimed at addressing issues raised in the report. Article 50 1. Any State Party may submit proposals for the amendment or revision of this Charter. 2. Proposals for amendment or revision shall be submitted to the Chairperson of the Commission who shall transmit same to State Parties within thirty (30) days of receipt thereof. 3. The Assembly, upon the advice of the Executive Council, shall examine these proposals at its session following notification, provided all State Parties have been notified at least three (3) months before the beginning of the session. 4. The Assembly shall adopt amendments or revisions by consensus or failing which, by two-thirds majority. 5. The amendments or revisions shall enter into force when approved by twothirds majority of State Parties. Article 51 1. The Chairperson of the Commission shall be the depository of this Charter.

47 African Charter on Democracy, Elections and Governance

295

2. The Chairperson of the Commission shall inform all Member States of the signature, ratification, accession, entry into force, reservations, requests for amendments and approvals thereof. 3. Upon entry into force of this Charter, the Chairperson of the Commission shall register it with the Secretary General of the United Nations in accordance with Article 102 of the Charter of the United Nations. Article 52 None of the provisions of the present Charter shall affect more favourable provisions relating to democracy, elections and governance contained in the national legislation of State Parties or in any other regional, continental or international conventions or agreements applicable in these State Parties. Article 53 This Charter, drawn up in four (4) original texts, in Arabic, English, French and Portuguese languages, all four (4) being equally authentic, shall be deposited with the Chairperson of the Commission who shall transmit certified copies of same to all Member States and the United Nations General Secretariat.

296

chapter A

48 Resolution on Electoral Processes and Participatory Governance in Africa Adopted by the African Commission on Human and People’s Rights in Banjul (Gambia), 23 February – 3 March 2011 (9th Extra-ordinary Session) The African Commission on Human and Peoples’ Right (the African Commission) meeting at its 9th Extra-ordinary Session held in Banjul, The Gambia, from 23 February to 3 March 2011; Recalling its mandate under the African Charter on Human and Peoples’ Rights (African Charter) to promote and protect human and peoples’ rights in Africa; Considering Article 13(1) of the African Charter which stipulates that “every citizen shall have the right to participate freely in the government of his/her country, either directly or through freely chosen representatives in accordance with the provisions of the law”; Mindful of the significant progress made by the African Union through the adoption in 2002 of the Declaration on the Principles Governing Democratic Elections in Africa which stipulates that “the holding of democratic elections constitutes an important dimension in the prevention, management and resolution of conflicts” and also by the adoption of the African Charter on Democracy, Elections and Governance in January 2007; Aware of the decisions of the African Union on unconstitutional changes of government, notably the decisions of the Assembly: Assembly/AU/Dec.220 (XII); and Assembly/AU/Dec.253 (XIII), adopted during its twelfth and thirteenth Sessions held respectively in Addis Ababa from 1 to 4 February 2009, and in Sirte from 1 to 4 July 2009; Recalling Resolutions: ACHPR/Res.133 (XXXXIIII) 08 on Elections in Africa adopted at its 44th Ordinary Session held in Abuja, Federal Republic of Nigeria, from 10 to 24 November 2008; and Resolution ACHPR/Res.164(XLVII) 10 on 2010 Elections in Africa, adopted at its 47th Ordinary Session held in Banjul, the Gambia from 12 to 26 May 2010; Noting that the primary purpose of elections is to achieve participatory governance without violence; Noting that many countries on the continent are embracing multi-party systems of government and other political and economic reforms, making it increasingly imperative that the objectives and principles set out in the African Charter on Democracy, Elections and Governance should be respected and implemented; Deeply concerned by the resurgence of electoral fraud, unconstitutional changes of government and violence related to the electoral irregularities, and

48 ELECTORAL PROCESSES AND PARTICIPATORY GOVERNANCE

297

violence that have led to enormous loss of lives, as well as the intransigence of incumbent regimes to relinquish power in some countries in sub-Saharan Africa; Bearing in mind that presidential elections are due in Benin, Cameroon, Chad, The Gambia, Liberia, Madagascar, Nigeria, Niger, Zambia and Zimbabwe; Condems the unconstitutional changes of government which undermine the progress made in the democratization process on the continent and constitutes a threat to peace and security in Africa; Further condems the irregularities surrounding electoral processes that can lead to the breakdown of democracy; Deplores the new trends in the development of national unity governments, which in some cases, legitimise undemocratic elections and paralyze political life; Urges States Parties to ratify the African Charter on Democracy, Elections and Governance and to respect its provisions and especially: – Recognize the right of existence of various political parties and the right to a pluralist democracy in accordance with international protection of human rights instruments; – Ensure the independence of the body responsible for the management of elections before, during and after the holding of any election; – Take necessary measures to enable courts to respond independently to the right to justice and reparation for victims of violence related to elections; – Ensure the independence of the judiciary bodies responsible for monitoring the legality of electoral processes; – Ensure that they create conditions conducive for free, fair, transparent, democratic and credible elections, and that contesting parties in particular, opposition parties are given equitable access to state controlled media and resources. Further calls on States Parties of the African Union to condemn African leaders who lose elections and refuse to concede defeat and hand over power peacefully; Appeals to the authorities of the African Union, including the au Peace and Security Council, and the Regional Economic Communities, to strengthen their ability to anticipate violations of democratic principles through more dynamic direct preventive action, with appropriate sanctions against any ­person departing from these principles.

298 49

chapter A

Resolution on the Unconstitutional Change of Governments

Adopted by the African Commission on Human and Peoples’ Rights in Banjul (Gambia), 18 April – 2 May 2012 (51st Ordinary Session) The African Commission on Human and Peoples’ Rights (African Commission), at its 51st Ordinary Session held from 18 April to 2 May 2012 in Banjul, The Gambia; Recalling its mandate to promote and protect human and peoples’ rights in Africa under the African Charter on Human and Peoples’ Rights (African Charter); Considering that one of the objectives of the African Union as stipulated in Article 3(f) of its Constitutive Act is to “promote peace, security, and stability on the continent”; Considering Article 4 of the Constitutive Act of the African Union which stipulates as a rule the respect for democratic principles, good governance, popular participation, the rule of law and human rights; Noting the provisions of the African Charter on Democracy, Elections and Governance, and the ecowas Protocol on Democracy and Good Governance; Further recalling the relevant provisions of the Algiers Decision AHG/142 (XXXV) of July 1999, the Lomé Declaration of July 2000 and the Protocol Relating to the Establishment of the Peace and Security Council of the African Union on the unconstitutional change of government; Concerned by the unconstitutional change of governments, a situation which constitutes a threat to democracy, peace and security on the continent; Deeply concerned by the recent military takeovers in Mali on 22 March 2012 and in Guinea-Bissau on 12 April 2012 by military juntas, acts that are in violation of the right to participate freely in the government of one’s country, either directly or through freely chosen representatives as stipulated in Article 13 of the African Charter on Human and Peoples’ Rights; Further concerned by the serious humanitarian consequences and human rights violations, in particular the killings and arbitrary arrests which are as a result of the unconstitutional change of governments; Strongly condemns the attempts at instituting autocratic regimes and the unconstitutional change of governments on the continent, acts which it considers to be a serious threat to stability, peace, security and development; Deplores the setbacks recorded in Mali and Guinea-Bissau, compared with the significant strides made in fostering democracy and the rule of law on the continent in recent years; Urges all African States to comply fully with the provisions of the African Charter on Democracy, Elections and Governance;

49 UNCONSTITUTIONAL CHANGE OF GOVERNMENTS

299

Calls on African Governments to engage political and social dialogue with a view to promoting democratic practices and consolidating the culture of democracy and peace on the continent; Urges the African Union and the international community to ensure that democratic governance is respected on the continent; Further calls on all Member States of the African Union that have not done so to ratify and implement the African Charter on Democracy, Elections and Governance.

300

chapter A

II

Economic Community of West African States

50

Protocol A/SP1/12/01 on Democracy and Good Governance

Adopted by the Heads of State and Government of the ecowas, Dakar (Senegal), 21 December 2001 Supplementary to the protocol relating to the mechanism for conflict prevention, management, resolution, peacekeeping and security Preamble We, the Heads of State and Government of the Member States of the Economic Community of West African States (ecowas), Mindful of the ecowas Treaty signed in Cotonou on 24th July 1993, notably its Article 58; Mindful of the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security signed in Lomé on 10th December 1999; Considering all the issues enumerated or reaffirmed in the preamble to the Protocol of 10th December 1999 referred to above; Mindful of the principles set out in the oau Solemn Declaration on Security, Stability, Development and Cooperation in Africa adopted in Abuja on 8 and 9 May 2000 and the Decision ahg. DEC 142 (XXV) on the framework for oau’s reaction to unconstitutional change of government, adopted by Algiers in July 1999; Considering the Harare Declaration adopted by the Commonwealth on 20 December 1991 and the Bamako Declaration adopted by the member countries of the Francophonie on 3 November 2000; Considering also the Cotonou Declaration adopted on 6 December 2000 at the end of the 4th international conference on new or restored democracies; Recalling that women’s rights have been recognized and guaranteed in all international human rights instruments, notably the Universal Declaration of Human Rights, the African Charter on Human and Peoples Rights and the Convention on the Elimination of all forms of Discrimination Against Women; Mindful of the ratification of the African Charter on Human and Peoples Rights and other international human rights instruments by the majority of the Member States and their solemn commitment to eliminate all forms of discrimination and harmful practices against women; Concerned about the increasing wave of international terrorism; Concerned also about the increasing incidence of conflicts caused by religious intolerance, political marginalisation and non-transparent elections;

50 Protocol A/SP1/12/01 on Democracy and Good Governance

301

Having observed that to become really effective, the Protocol of 10 December 1999 needs to be complemented through the incorporation of provisions concerning issues such as prevention of internal crises, democracy and good governance, the rule of law, and human rights; Having decided to enhance the ecowas Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security; Have agreed as follows: Definitions The terms and expressions used in the present Supplementary Protocol have the same meanings as those used in the Protocol of 10th December 1999. The list of definitions is completed as follows: “Treaty” means the Revised Treaty of the Economic Community of West African States (ecowas) signed in Cotonou on 24th July 1993; “Protocol” means the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, signed in Lomé on 10th December 1999; “Supplementary Protocol” means the Protocol on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security; “Community” means the Economic Community of West African States of the Community as defined in paragraph 2 of Article 2 of the Treaty; “Member State” or “Member States” means a Member State or Member States of the Community as defined in paragraph 2 of Article 2 of the Treaty; “Community citizen or citizens” means any national(s) of Member States who satisfy the conditions stipulated in the Protocol defining Community citizenship; “Court of Justice” means the Court of Justice of the Community established under Article 15 of the Treaty; “Authority” means the Authority of Heads of State and Government of the Economic Community of West African States established by Article 7 of the Treaty; “Mediation and Security Council” means the Mediation and Security Council as defined by Article 8 of the Protocol; “Defence and Security Commission” means the Defence and Security Commission as defined in Article 18 of the Protocol; “Executive Secretary” means the ecowas Executive Secretary appointed in accordance with Article 18 of the Treaty; “Executive Secretariat” means the Executive Secretariat established under Article 17 of the Treaty;

302

chapter A

“Deputy Executive Secretary” means the Deputy Executive Secretary in charge of Political Affairs, Defence and Security as referred to in Article 16 of the Protocol; “ecomog” means the ecowas Cease-fire Monitoring Group, which constitutes the Community’s intervention force as defined in Article 21 of the Protocol relating to the Mechanism etc.; “Armed Forces” includes the army, Airforce, Navy, and Gendarmerie; “Security Forces” the Police, Gendarmerie, National Guards and other Forces assigned with Security.

Chapter I

Principles The provisions of this chapter complement and clarify the principles set out in Article 2 of the Protocol of 10th December 1999.

Section I: Constitutional Convergence Principles

Article 1 The following shall be declared as constitutional principles shared by all Member States: (a) – Separation of powers – the Executive, Legislative and Judiciary. – Empowerment and strengthening of parliaments and guarantee of parliamentary immunity. – Independence of the Judiciary: Judges shall be independent in the discharge of their duties. – The freedom of the members of the Bar shall be guaranteed; without prejudice to their penal or disciplinary responsibility in the event of contempt of court or breaches of the common law. (b) Every accession to power must be made through free, fair and transparent elections. (c) Zero tolerance for power obtained or maintained by unconstitutional means. (d) Popular participation in decision-making, strict adherence to democratic principles and decentralization of power at all levels of governance. (e) The armed forces must be apolitical and must be under the command of a legally constituted political authority; no serving member of the armed forces may seek to run for elective political. (f) Secularism and neutrality of the State in all matters relating to religion; freedom for each individual to practice, within the limits of existing laws, the religion of his/her choice everywhere on the national territory. The secularism

50 Protocol A/SP1/12/01 on Democracy and Good Governance

303

shall extend to all parts of the State, but shall not deprive the State of the right to regulate, with due respect to human rights, the different religions practiced on the national territory or to intervene when law and order break down as a result of any religious activity. (g) The State and all its institutions belong to all the citizens; therefore none of their decisions and actions shall involve any form of discrimination, be it on an ethnic, racial, religion or regional basis. (h) The rights set out in the African Charter on Human and Peoples’ Rights and other international instruments shall be guaranteed in each of the ecowas Member States; each individual or organization shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his/her rights. In the absence of a court of special jurisdiction, the present Supplementary Protocol shall be regarded as giving the necessary powers to common or civil law judicial bodies. (i) Political parties shall be formed and shall have the right to carry out their activities freely, within the limits of the law. Their formation and activities shall not be based on ethnic, religious, regional or racial considerations. They shall participate freely and without hindrance or discrimination in any electoral process. The freedom of the opposition shall be guaranteed. Each Member State may adopt a system for financing political parties, in accordance with criteria set under the law. (j) The freedom of association and the right to meet and organize peaceful demonstrations shall also be guaranteed. (k) The freedom of the press shall be guaranteed. (l) All former Heads of State shall enjoy a special status including freedom ofmovement. They shall enjoy special benefits compatible to their statusas former Heads of State.

Section II: Elections

Article 2 1. No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of Political actors. 2. All the elections shall be organized on the dates or at periods fixed by the Constitution or the electoral laws. 3. Member States shall take all appropriate measures to ensure that women have equal rights with men to vote and be voted for in elections, to participate in the formulation of government policies and the implementation thereof

304

chapter A

and to hold public offices and perform public functions at all levels of governance. Article 3 The bodies responsible for organizing the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organized to determine the nature and the structure of the bodies. Article 4 1. Each ecowas Member State shall ensure the establishment of a reliable registry of births and deaths. A central registry shall be established in each Member State. 2. Member States shall cooperate in this area with a view to exchanging experiences and where necessary providing technical assistance to each other in the production of reliable voters’ lists. Article 5 The voters’ lists shall be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters who may have access to them whenever the need arises. Article 6 The preparation and conduct of elections and the announcement of results shall be done in a transparent manner. Article 7 Adequate arrangements shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results. Article 8 Member States shall use the services of civil society organizations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence. Article 9 The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.

50 Protocol A/SP1/12/01 on Democracy and Good Governance

305

Article 10 All holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters.

Section III: Election Monitoring and ecowas Assistance

Article 11 The provisions of Article 42 of the Protocol of 10th December 1999 hereby complemented by the provisions under this section. Article 12 1. At the request of any Member State, ecowas may provide assistance in the conduct of any election. 2. Such assistance may take any form. 3. Also, ecowas may dispatch a monitoring team to the country concerned for the purpose of monitoring the elections. 4. The decision in this respect shall be taken by the Executive Secretary. Article 13 1. As elections in a Member State approach, the Executive Secretary shall dispatch a fact-finding Mission to the Member State conducting an election. 2. This mission may be followed by an exploratory Mission aimed at: – Collecting all texts governing the elections concerned; – Gathering all information on the conditions under which the elections shall be conducted; – Collecting all pertinent information relating to the contesting candidates or political parties; – Meeting all candidates, political party leaders, government authorities and other competent bodies; – Assessing the status of preparations for the elections; – Gathering any other useful information that may provide a clear picture of the situation. Article 14 1. The Executive Secretary shall appoint the leader and the members of the Observer/Supervisory Mission, who shall be independent persons and Nationals of Member States other than the Member State conducting the Elections. 2. The Members of the Mission shall include women. 3. Staff of the Executive Secretariat shall be designated to assist the Mission.

306

chapter A

Article 15 1. The Observer/Supervisory Mission, with the documents collected by the exploratory Mission and the report prepared by the Mission, shall arrive in the Member State concerned at least forty-eight hours prior to the conduct of the elections. 2. The Observer/Supervisory Mission may be preceded by ecowas Staff, who shall prepare the meetings to be held between the Mission and the national authorities. 3. The Mission shall be expected to hold consultations with the relevant authorities of the host government for an exchange of views and in order to determine the mode of deployment in the host Member State. 4. It may establish cooperation links with ngo or any other observer team while maintaining its autonomy. 5. The members of the Mission shall show restraint and refrain from making any individual statement. Any statement shall be made collectively and on behalf of the Mission by the team leader or a spokesperson appointed for this purpose. Article 16 1. The Mission shall remain in the country throughout the election period and until the election results are announced. 2. The Mission shall also submit a report to the Executive Secretary. 3. The Report shall comprise: – The Mission’s own observations; – Statements by witnesses; – Its assessment of the conduct of the elections from the point of view of the national laws governing the elections and the universal principles in electoral matters; – Its recommendations for the improvement of the conduct of future elections and monitoring Missions. Article 17 1. The Observer/Supervisory Mission’s report shall be signed by all Members of the Mission and submitted to the Executive Secretary by the Mission’s leader within fifteen (15) days with effect from the date of accomplishment of the Mission. 2. Before leaving the host country, the Mission shall convene a consultative meeting for the preparation of the report. 3. Any member of the Mission, who is unable to attend the meeting, shall submit a report in writing to the Mission’s leader before leaving the country. 4. ecowas Staff shall assist the Mission in the preparation of the report.

50 Protocol A/SP1/12/01 on Democracy and Good Governance

307

Article 18 The report shall be forwarded by the Executive Secretary, together with his own observations, if necessary, to the Mediation and Security Council for recommendations to be made to the country concerned and/or to all Member States, and for measures to be taken, where necessary. Section IV: The Role of the Armed Forces, the Police and the Security Forces in a Democracy Article 19 1. The armed forces and police shall be non-partisan and shall remain loyal to the nation. The role of the armed forces shall be to defend the independence and the territorial integrity of the State and its democratic institutions. 2. The police and other security agencies shall be responsible for the maintenance of law and order and the protection of persons and their properties. 3. The armed forces, the police and other security agencies shall participate in ecomog missions as provided for in Article 28 of the Protocol. 4. They may also, on the decision of the constitutionally constituted authorities, participate in peacekeeping missions under the auspices of the African Union or the United Nations. 5. Members of the armed forces may be drafted to participate in national development projects. Article 20 1. The armed forces, the police and other security agencies shall be under the authority of legally constituted civilian authorities. 2. The civilian authorities shall respect the apolitical nature of the armed forces and police. All political or trade union activities and propaganda shall be forbidden in the barracks and within the armed forces. Article 21 The armed and security forces personnel as citizens, shall be entitled to all the rights set out in the constitution, except as may be stated otherwise in their special regulations. Article 22 1. The use of arms to disperse non-violent meetings or demonstrations shall be forbidden. Whenever a demonstration becomes violent, only the use of minimal and/or proportionate force shall be authorized. 2. All cruel, inhuman and degrading treatment shall be forbidden.

308

chapter A

3. The security forces, while carrying out investigations, shall not disturb or arrest family members or relations of the person presumed guilty or suspected of having committed an offence. Article 23 1. The armed forces, the police and other security agencies shall during their training receive instructions on the Constitution of their country, ecowa Sprinciples and regulations, human rights, humanitarian law and democratic principles. In this regard, seminars and meetings bringing together members of the armed forces, Police and other Security agencies and other sectors of society shall be organized from time to time. 2. Joint training sessions shall also be arranged for members of the armed forces from different ecowas countries, the police, other security forces, university dons and members of the civil society. Article 24 1. The Member States undertake to strengthen their national agencies responsible for preventing and combating terrorism. 2. In accordance with Articles 3(d) and 16(1) of the Protocol, the Department of Political Affairs, Defence and Security of the Executive Secretariat shall initiate joint activities for the national agencies of Member States in charge of preventing and combating terrorism.

Section V: Poverty Alleviation and Promotion of Social Dialogue

Article 25 Member States agree that poverty alleviation and promotion of social dialogue are important factors for peace. Article 26 Member States undertake to provide the basic human needs of their populations. Article 27 Member States undertake to fight poverty effectively in their respective countries and within the Community, especially by: – Creating an environment conducive to private investment and the development of a dynamic and competitive private sector; – Providing the instruments necessary for the enhancement of job creation and for the development of the social sector as a matter of priority;

50 Protocol A/SP1/12/01 on Democracy and Good Governance

309

– Ensuring equitable distribution of resources and income in order to consolidate national unity and solidarity; – Enhancing the integration of economic, financial and banking activities through harmonization of commercial and financial laws and establishment of Community multi-national corporations. Article 28 1. Employers associations and trade unions shall be organized and/or strengthened in each Member State and at the regional level of ecowas. 2. Member States shall promote social dialogue. In this regard, employers associations and workers unions shall meet regularly among themselves and with political and administrative authorities with a view to preventing social conflict. 3. There shall be associations of farmers, artisans and artists in each Member State and at the sub-regional level of ecowas.

Section VI: Education, Culture and Religion

Article 29 Education, culture and religion are essential factors for peace, stability and development in each Member State. Article 30 1. There shall be regular exchanges of students and academics between Member States. 2. Community institutions shall be established to provide training for students from the sub-region. 3. – In accordance with Article 36 of the Protocol, the Executive Secretariat shall, from now on, provide budgetary allocations for immediate funding of the programmes as contained in this Article. – Each Member State shall in the shortest possible time also make a contribution for the take-off and implementation of the programmes contained in this Article. – A percentage of the Community levy shall be allocated for the establishment of a fund for the implementation of the activities outlined in this Article. 4. A policy to promote women’s education at all levels and in all fields of training shall be adopted and implemented in each Member State and at the level of ecowas.

310

chapter A

5. Member States shall guarantee women equal rights with men in the field of education and in particular, shall ensure the same conditions for career and vocational guidance, access to the same curricula, access to opportunities to benefit from scholarships and other study grants. They shall also ensure the elimination of stereotyped concepts of roles of men and women at all levels and in all forms of education. Article 31 1. The culture of every group of people in each Member State shall be respected and developed. 2. The Executive Secretary shall take the necessary measures to organize, within the sub-region, periodic inter-state cultural events: festivals of arts and culture, symposia, various cultural events on literature, music, arts, and sports. 3. Member States undertake to take measures to eliminate or prevent religious conflicts and to promote religious tolerance and harmony. To this end, permanent structures for consultations among the different religions on the one hand and between the different religions and the State on the other hand, shall be established at national levels. 4. The Executive Secretary shall take the necessary measures to promote, through periodic meetings, consultations among the religious organizations of Member States.

Section VII: Rule of Law, Human Rights and Good Governance

Article 32 Member States agree that good governance and press freedom are essential for preserving social Justice, preventing conflict, guaranteeing political stability and peace and for strengthening democracy. Article 33 1. Member States recognize that the rule of law involves not only the promulgation of good laws that are in conformity with the provisions on human rights, but also a good judicial system, a good system of administration, and good management of the State apparatus. 2. They are also convinced that a system that guarantees smooth running of the State and its administrative and judicial services, contributes to the Con­ solidation of the rule of law.

50 Protocol A/SP1/12/01 on Democracy and Good Governance

311

Article 34 1. Member States and the Executive Secretariat shall endeavour to adopt at national and regional levels, practical modalities for the enforcement of the rule of law, human rights, justice and good governance. 2. Member States shall ensure accountability, professionalism, transparency, and expertise in the public and private sectors. Article 35 1. Member States shall establish independent national institutions to promote and protect human rights. 2. The Executive Secretariat shall take measures to strengthen their capacities. The institutions shall be organized into a regional network. Within the framework of this network, each national institution shall systematically submit to the Executive Secretariat, any report on human rights violations observed on its territory. Such reports and reactions of governments shall be widely disseminated through the most appropriate means. Article 36 Member States shall institutionalize a national mediation system. Article 37 1. Each Member State shall work towards ensuring pluralism of the information sector and the development of the media. 2. Each Member State may give financial assistance to privately-owned media. The distribution and allocation of such assistance shall be done by an Independent national body or by a body freely instituted by the journalists themselves. Article 38 1. Member States undertake to fight corruption and manage their national resources in a transparent manner, ensuring that they are equitably distributed. 2. In this regard, Member States and the Executive Secretariat undertake to establish appropriate mechanisms to address issues of corruption within the Member States and at the Community level. Article 39 Protocol A/P1/7/91 adopted in Abuja on 6 July 1991 relating to the Community Court of Justice, shall be reviewed so as to give the Court the power to hear,

312

chapter A

inter-alia, cases relating to violations of human rights, after all attempts to resolve the matter at the national level have failed.

Section VIII: Women, Children and the Youth

Article 40 Member States agree that the development and promotion of the welfare of women are essential factors for development, progress and peace in the society. Consequently, they undertake to eliminate all forms of discrimination and harmful and degrading practices against women. Article 41 1. Member States shall guarantee children’s rights and give them access to basic education. 2. Special laws shall be enacted in each Member State and at the level of the Community against child trafficking and child prostitution. 3. The Community shall adopt laws and regulations on Child Labour in line with the provisions of the International Labour Organizations (ilo). Article 42 1. Member States shall agree on rules to be adopted on the training and development of the youth. 2. Uniform laws shall be adopted within the Community to prevent and handle cases of juvenile delinquency. Article 43 The Executive Secretariat shall put in place all necessary structures within its establishment to ensure the effective implementation of common policies and programmes relating to the education and the promotion of the welfare of women and youth.

Chapter II



Modalities for Implementation and Sanctions

Article 44 1. This Article complements the provisions of Chapter V of the Protocol of10th December 1999. 2. In order to give full force to the provision of Article 28 of this Supplementary Protocol and in accordance with Article 57 of the Treaty, a legal convention

50 Protocol A/SP1/12/01 on Democracy and Good Governance

313

Incorporating, if need be, Convention A/P1/7/91 relating to mutual assistance In criminal matters, and the Convention A/P1/8/94 on Extradition shall be Elaborated and adopted not later than twelve months after the entry into force Of this Supplementary Protocol. Article 45 1. In the event that democracy is abruptly brought to an end by any means or where there is massive violation of Human Rights in a Member State, ecowas may impose sanctions on the State concerned. 2. The sanctions which shall be decided by the Authority, may take the following forms, in increasing order of severity: – Refusal to support the candidates presented by the Member State concerned for elective posts in international organizations; – Refusal to organize ecowas meetings in the Member State  concerned; – Suspension of the Member State concerned from all ecowas decision-making bodies. During the period of the suspension the Member State shall be obliged to pay its dues for the period. 3. During the period of suspension, ecowas shall continue to monitor, encourage and support the efforts being made by the suspended Member State to return to normalcy and constitutional order. 4. On the recommendation of the Mediation and Security Council, a decision may be taken at the appropriate time to proceed as stipulated in Article 45of the Protocol of 10th December 1999.

Chapter III



General and Final Provisions

Article 46 This Supplementary Protocol shall form an integral part of the Protocol relatingto the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, signed in Lomé on 10th December 1999. Article 47 Amendements 1. Any Member State may submit proposals for the amendment or revision of this Supplementary Protocol. 2. Any such proposals shall be submitted to the Executive Secretary who shall notify other Member States not later than thirty days after the receipt of such proposals. Amendments or revisions shall not be considered by the Authority,

314

chapter A

unless Member States shall have been given at least one month’s Notice thereof. 3. Amendments or revisions shall be adopted by the Authority. Article 48 Withdrawal 1. Any Member State wishing to withdraw from this Supplementary Protocol shall give a one-year written notice to the Executive Secretary who shall inform Member States thereof. At the end of this period of one year, if such notice is not withdrawn, such a State shall cease to be a party to this Supplementary Protocol. 2. During the period of one year referred to in the preceding paragraph, such a Member State shall nevertheless continue to observe the provisions of this Supplementary Protocol and discharge its obligations thereunder. Article 49 Entry into Force This Supplementary Protocol shall enter into force upon ratification by at least nine (9) signatory States in accordance with the constitutional procedures of each Member State. Article 50 Depository Authority This Supplementary Protocol and all instruments of ratification shall be deposited with the Executive Secretariat which shall transmit certified true copies to all Member States and notify them of the dates of deposit of instruments of ratification by the Member States and shall register it with the Organization of African Unity (oau)/African Union (au), as well as the United Nations (un) and any other organization as may be decided by the Council.

51 Bata Declaration

III

315

Economic Community of Central African States

51 Bata Declaration for the Promotion of Lasting Democracy, Peace and Development in Central Africa Adopted by the Subregional Conference on Democratic Institutions and Peace in Central Africa, Bata (Equatorial Guinea), 21 May 1998 1. Participants in the Subregional Conference on Democratic Institutions and Peace in Central Africa, bringing together members of government, representatives of opposition parties, senior officers of the armed forces and security forces, parliamentarians and representatives of civil society from the Central African countries, met in Bata, Equatorial Guinea, from 18 to 21 May 1998, under the auspices of the United Nations Standing Advisory Committee on Security Questions in Central Africa, to consider issues related to the democratic process and peace in Central Africa. 2. Participants expressed their deep concern at the persistence of crises and conflicts in Central Africa, which had caused such loss of life, destruction and suffering in the subregion. They saw that precarious situation as a threat to the democratic process and to development in what was potentially a rich subregion. 3. They emphasized the historic opportunity offered by the Conference, which was being held during a period of major changes in Africa, characterized by the still difficult transition from an era of single political parties to one of pluralist democracy. 4. Participants noted that the Conference had made it possible for different social and political sectors to work together in the search for ways and means of strengthening peace and democracy within States and throughout the Central African subregion. In that regard, they warmly thanked the SecretaryGeneral of the United Nations for his firm support and for the material assistance which the Organization had provided to the Committee to permit the holding of that important Conference. Participants expressed the hope that more such meetings would be held. 5. They also thanked the Secretary-General for providing constant support and encouragement to the United Nations Standing Advisory Committee on Security Questions in Central Africa, a key political mechanism for building confidence and enhancing cooperation for peace and stability in a turbulent subregion. 6. Participants recognized unanimously that, as the Secretary-General of the United Nations had stressed in his report to the General Assembly and the

316

chapter A

Security Council on the causes of conflict and the promotion of durable peace and sustainable development in Africa, democratic government helped to guarantee political rights, protect economic freedoms and foster an environment where peace and development could flourish. 7. Accordingly, and convinced of the need to establish in their subregion open political systems which permitted the full participation of all social and political forces, they reiterated their firm commitment to promoting democracy in their own States and to contributing to the stability of the Central African subregion as a whole. 8. They reaffirmed the sovereign right of each State to establish a political, social and economic system appropriate to its own culture and to determine the rate at which its institutions would be democratized, while respecting universal principles, particularly those set forth in regional and international instruments such as the Charter of the United Nations, the Charter of the Organization of African Unity, the African Charter of Human and Peoples’ Rights and the Universal Declaration of Human Rights. 9. They recognized that the establishment of solid democratic foundations in each Member State, and in the subregion as a whole, would help to increase stability, strengthen the bases for conflict prevention and promote sustainable socio-economic development in Central Africa. 10. They emphasized that, despite all the pitfalls, it was necessary to persevere on the road to democratization, which was not an isolated event but a continuing process, in order to create the ideal conditions for the prosperity of the States and peoples of the entire subregion. 11. While reaffirming the sovereign right of each nation to determine the nature and rate of democratization of its institutions, they recognized unanimously that that process must inevitably lead to the development of a dynamic political system capable of allowing the full expression of the people’s will and based on the following principles: – respect for the rule of law; – efforts to combat impunity; – political pluralism; – the organization of free, transparent and honest elections; – freedom of the press; – independence of the judiciary; – respect for human rights and human dignity; – promotion of a genuine, essentially non-violent democratic culture; and – the practice of dialogue and tolerance.

51 Bata Declaration

317

Recommendations 12. In order to provide a sustainable basis for the democratization process and to strengthen peace in the Central African subregion, participants adopted the following measures and recommended the creation of the following mechanisms at the inter-State and internal levels: At the inter-State level (a) In response to a proposal by His Excellency Mr. Teodoro Obiang Nguema Mbasogo, Head of State of Equatorial Guinea, the Conference recommended that a subregional parliament should be established in Central Africa as soon as possible. That parliament, which would be responsible for dealing with issues of common interest designed to strengthen confidence-building measures and peace in the subregion, would be composed of parliamentarians elected in pluralist, democratic elections in their respective countries and appointed by their national parliaments. The subregional parliament would serve as a key mechanism for cooperation and for the promotion of democratic values and the democratic experiment in Central Africa and would meet in the member countries on a rotating basis. (b) Convinced that the democratization process involved not only politicians but also peoples, and in order to give the subregional parliament all the support that it deserved, participants recommended that representatives of civil society, particularly organizations for the protection and promotion of human rights, organizations for enhancing the status of women and youth movements, should be given permanent observer status in the parliament. (c) Participants instructed the Government of Equatorial Guinea, in consultation with the current President of the Bureau of the United Nations Standing Advisory Committee on Security Questions in Central Africa, to notify the Secretary-General of the United Nations and the international community as a whole in order to facilitate the early establishment of the subregional parliament. (d) Participants reiterated that it was urgently necessary for all States of the Central African subregion to sign and scrupulously observe the Non-­Aggression Pact jointly negotiated, adopted and signed by them in order to avoid resorting to the use of force in their reciprocal relations. They again called upon Angola and Rwanda to sign the Pact and invited signatory States to ratify it. (e) Aware of the vital importance of establishing and ensuring the effectiveness of democratic institutions in the subregion, participants appealed to the international community to help train competent national personnel, ­particularly in the areas of election organization and the proper functioning of democratic institutions.

318

chapter A

(f) In order to give the peoples of the subregion a better understanding of the ideals of peace and a democratic culture in Central Africa, the Conference requested the Secretary-General of the United Nations to facilitate the publication and wide dissemination of the results of the historic Bata Conference. At the internal level (a) Stressing the need for scrupulous respect for the rule of law, participants unequivocally condemned the use of armed force as a means of winning and retaining political power. (b) Participants recalled that the role of the armed forces was to guarantee republican institutions, due respect for the law and the stability of the State governed by the rule of law. (c) Convinced that good governance and transparent management of public affairs would promote public well-being and improved economic performance in the subregion as a whole, participants stressed the need to combat corruption and impunity. (d) Participants reaffirmed that respect for the civil and political rights of individuals, human rights and the rule of law as a guarantor of equity and social justice was the best safeguard against threats to the peace and internal security of States and to the strengthening of democracy. 13. Participants recommended that there should be more frequent contacts between politicians and civil society both within and among the various member countries of the Committee, in order to build public confidence in State institutions and to make elected officials accountable once more to the State and the general public.

52 Dar-Es-Salaam Declaration

319

IV International Conference on the Great Lakes Region 52 Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region – Excerpts Adopted by the Heads of State and Government, Dar-Es-Salaam (Tanzania), 19–20 November 2004 (1st summit) I Preamble 1. We, the Heads of State and Government of Member countries of the International Conference on the Great Lakes Region, meeting in Dar Es-Salaam, on 19 and 20 November 2004, under the auspices of the United Nations and the African Union; 2. Deeply concerned about the endemic conflicts and persistent insecurity caused or aggravated by, inter alia, economic stagnation and poverty aggravation, mistrust and suspicion between governments, massive violations of human rights and other policies of exclusion and marginalisation, gender inequality, use of violence for conquering and conserving power, impunity of crimes of genocide, crimes against humanity, war crimes, illicit trafficking of small arms and light weapons, proliferation of armed groups, organized crime and illegal exploitation of natural resources; recognizing the efforts undertaken at national, regional and international level to resolve these endemic problems; 3. Recalling that the causes of conflict and insecurity in the region can also be found in our history, including, inter alia, pre-colonial, colonial and post-­ colonial eras; 4. Aware of the need to respect democracy and good governance, the fundamental principles enshrined in the un Charter and the Constitutive Act of the au such as territorial integrity, sovereignty, non-interference and non-aggression, prohibition of any Member State from allowing the use of its territory as a base for aggression and subversion against another Member State, as well as the need for effective and sustained political will to jointly seek peaceful solutions and especially to honour our commitments in a spirit of mutual trust; 5. Conscious that the crises and conflicts affecting one country can rapidly spread to another, and even to the entire region, owing to the close links existing between our peoples; 6. Deeply concerned about the humanitarian and social consequences of crises and armed conflicts especially violations of the human rights of women, children, the elderly, the disabled and youth, the recruitment and use of child soldiers in armed conflicts, the sexual violence and exploitation of girls and

320

chapter A

women and their use as sexual slaves, the forced displacement of populations, the vulnerability of communities living at the borders, the destruction of basic services, especially the health and education infrastructures, the food insecurity and subsequent malnutrition of populations, the degradation of the ecosystem and human settlements, and the strain on the allocation of national resources between the security and social sectors; 7. Concerned about the impact of armed conflicts on the environment, particularly the effect of refugees and internally displaced persons on the degradation of the ecosystem of the Congo River Basin and the African Great Lakes region, and fully aware of the link between peace, environment and development; 8. Deeply concerned over the lack of full application of essential legal instruments contained in International Humanitarian La w and some basic principles, notably those concerning refugees and displaced persons, leading to serious breaches in the protection of, and delivery of humanitarian assistance to, affected populations; 9. Concerned over the hiv/aids scourge, the spread of Malaria, Tuberculosis and other infectious diseases, the high illiteracy rate, and their consequences on human development; 10. Aware of the lag in economic development and regional integration linked to, among other factors, unsound policy choices, mixed results of structural adjustment programmes, the mismanagement of public resources, the unsustainable debt burden and the destructive effects of war; 11. Considering that the discrimination against women, particularly at decisionmaking levels, in the areas of peace and security, democracy and political, economic and social governance calls for a deliberate, immediate and sustainable redress; 12. Aware of the fact that political leaders need to work individually and collectively towards reconstruction and development of the region and to promote a future of peace, stability and prosperity; 13. Convinced that the best way to build a viable future for all is through reestablishment of interstate and intrastate relations based on trust, revitalisation of cooperation and integration, within the framework of a regional and inclusive vision for the promotion of sustainable peace, security, democracy and development; II Vision 14. Declare our collective determination to transform the Great Lakes Region into a space of sustainable peace and security for States and peoples, political and social stability, shared growth and development, a space of cooperation based on the strategies and policies of convergence within the framework of a

52 Dar-Es-Salaam Declaration

321

common destiny which we are determined to build, in line with the aspirations of our peoples, in conformity also with the au Vision and Mission, with the full participation of all our peoples, and in partnership with the United Nations, the African Union, and the International Community as a whole; 15. Reaffirm our commitment to achieving this common destiny with strict compliance to the un Charter, the Constitutive Act of the African Union, the Universal Declaration on Human Rights, the African Charter on Human and Peoples’ Rights, as well as all relevant international and regional legal instruments; 16. Commit ourselves to build a Great Lakes Region that is open to other regions of the Continent, by building our cooperation on priority areas: Peace and Security, Democracy and Good Governance, Economic Development and Regional Integration, Humanitarian and Social Issues and to achieve our vision through the priority policy options, guiding principles and mechanisms hereunder; III

Priority Policy Options and Guiding Principles

Peace and Security Commit ourselves to: 17. Fully support the national peace processes in the region and refrain from any acts, statements or attitudes likely to negatively impact them, including through the media; 18. Strengthen bilateral and regional cooperation, through the adoption and effective implementation of Non-Aggression and Common Defence Pacts; 19. Establish an effective regional security framework for the prevention, management and peaceful settlement of conflicts and, to this end, evaluate regularly relevant sub-regional initiatives and mechanisms and adapt them while encouraging appropriate traditional structures; 20. Fight genocide in the Great Lakes region and hereby undertake to neutralize, disarm, arrest and transfer to relevant international tribunals the perpetrators of genocide, including the forces that committed genocide in Rwanda in 1994, and any such other forces that may occur in future in accordance with the 1948 Genocide convention and relevant United Nations Security Council resolutions; 21. Strengthen cooperation in the area of defence and security and promote confidence building by establishing policies, measures and mechanisms aimed at enhancing good neighbourliness and multi-sectoral cooperation; 22. Promote common policies to put an end to the proliferation of illicit small arms and light weapons, as well as anti-personnel mines and, in that regard,

322

chapter A

harmonize and ensure the implementation of existing agreements and mechanisms; 23. Ensure security at common borders within the context of trans-border proximity management strategies, in consultation with the populations of these areas; 24. Prevent any direct or indirect support, delivery of arms or any other form of assistance to armed groups operating in the region, and deny use of any territory by armed groups to carry out acts of aggression or subversion against other Member States; 25. Adopt and implement, in an effective and sustainable way, national disarmament, demobilisation and reintegration programmes (ddr) and, where applicable, ensure regional coordination for repatriation and resettlement components (ddrrr), taking into account the special needs of former child soldiers and female excombatants; 26. Intensify the fight against trans-border crime and terrorism and, to this end, implement measures against impunity through regional mechanisms set up to monitor the enforcement of relevant international Conventions; 27. Protect vulnerable groups, women, children, the elderly, the disabled and the sick, the refugees and displaced persons, involving them in our peace efforts, addressing issues of sexual violence, implementing a Regional Strategy against the hiv/aids pandemic as a peace and security issue, in conformity with the relevant regional and international political and legal mechanisms, including Resolutions 1308 and 1325 of the United Nations Security Council, creating conditions for protecting the youth from all sorts of manipulation, particularly during armed conflicts; Democracy and Good Governance Commit ourselves to: 28. Promote, in our States and in the region, policies and strategies based on respect of values, principles and norms of democracy and good governance, as well as observance of human rights; 29. Combat all discriminatory ideologies, policies and practices and any acts of genocide, massacres, terrorism, racism, ethnicism, exclusion, as well as any other forms of violence or crime; 30. Develop common policies and programmes in civic education, free movement of persons, freedom of expression and free exchange of ideas and information; 31. Promote policies of national unity based on multiculturalism, tolerance, the culture of peace and dialogue, to build a common destiny on shared African cultural values;

52 Dar-Es-Salaam Declaration

323

32. Put in place national and regional policies based on democracy and good governance aimed at consolidating the rule of law, building capacity in leadership, ensuring the transparency of electoral processes, strengthening the efficiency of legal and security services, promoting new Information and Communication Technologies (ict); 33. Promote effective participation of the different socioeconomic actors, specifically the private sector, civil society, women and youth in the consolidation of democracy and good governance, particularly through the promotion of good governance at local level, and the emergence of independent and responsible media; 34. Encourage the Member States of the Conference to adhere to the nepad African Peer Review Mechanism and establish regional bodies on adherence to international conventions on human rights and on criminal practices such as illicit trafficking of small arms and light weapons and on the illegal exploitation of natural resources in the Great Lakes Region; 35. Adopt deliberate policies and mechanisms for promoting gender equality at all levels and in all sectors, at the national and regional levels, in accordance with the Millennium Declaration, the un Security Council Resolution 1325 (2000), the Convention on the Elimination of all forms of Discrimination against Women (cedaw), the African Charter on Human and Peoples’ Rights, the Protocol on the Rights of Women in Africa, the Beijing Platform for Action and the African Union’s Declaration on Gender Equality in Africa; 36. Encourage political and legal cooperation between States of the region to address crimes, particularly genocide, crimes against humanity, war crimes and terrorism; […] V Final Provisions […] 82. Declare that the present Declaration takes effect immediately and undertake to respect and implement its provisions.

324

chapter A

53 International Conference on the Great Lakes Region Protocol on Democracy and Good Governance – Excerpts Adopted by the Heads of State and Government of the Member States of the International Conference on the Great Lakes Region, Nairobi (Kenya), 1 December 2006 Preamble We, Heads of State and Government of the Member States of the International Conference on the Great Lakes Region; Referring to the Dar-es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region adopted and signed in Dar-­ es-Salaam (United Republic of Tanzania) on 20 November 2004; Mindful that the Dar-Es-Salaam Declaration lays the foundations for lasting peace and stability; Affirming that, in accordance with the Constitutive Act of the African Union the scourge of conflicts in Africa is a major obstacle to the socio-economic development of the continent and that it is necessary to promote peace, security and stability, the preconditions to implementing development and integration programmes; Conscious of the fact that the accumulated deficits in the matter of democratization are at the origin of the conflicts in the Great Lakes Region; Considering that the respect for human rights guaranties the consolidation of peace and security in the Great Lakes Region; Mindful that the Universal Declaration on Human rights, on one hand the African Charter on Human and Peoples’ Rights, on the other hand, have stipulated that everyone can enjoy all the rights and freedoms stated therein, without any distinction, in particular of race, colour, sex, language, religion, political opinion or any other opinion, national or social origin, wealth, birth or any other situation; Considering the solemn commitment contained in the Dar-Es-Salaam Declaration to build a Great Lakes Region that is open to other regions of the continent by building cooperation on priority areas: peace and security, democracy and good governance, economic development and regional integration and humanitarian and social issues; Reaffirming the commitment expressed in the Dar-Es-Salaam Declaration to respect the principles of democracy and good governance, as well as the basic principles of the United Nations Charter and the Constitutive Act of the African Union including territorial integrity, sovereignty, non interference and non aggression, prohibition of any Member State from permitting the use

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE

325

of its territory by armed groups as a base for aggression and subversion against another Member State, as well as the need for effective and sustainable political will to jointly seek peaceful solutions and in particular, to honour the commitments made by States Party in the spirit of mutual trust, in accordance with the Dar es Salaam Declaration; Reaffirming the principle of equality between men and women as laid down in the United Nations Charter,, the Convention on the Elimination of all Forms of Discrimination against Women, the Convention on the Elimination of all forms of Racial Discrimination, the Convention against Corruption, Resolution 1325 of the un, the Action Platform and Declaration of Beijing, the Millennium Development Goals, the Constitutive Act of the African Union, the New Partnership for Africa’s Development (nepad), the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the Solemn Declaration of the African Union on Equality between Men and Women in Africa which emphasizes the commitment of the African States to ensure the full participation of African women in the development of Africa as equal partners; Mindful of the Dar-Es-Salaam Declaration which recognizes that discrimination against women at all decision making levels, in the areas of peace and security, democracy and political, economic and social governance, needs to be addressed immediately in a proactive and sustainable manner; Recalling resolution 2000/64 and resolution 2001/72 of the Commission on Human rights, which reaffirmed that good governance requires the respect of principles of transparency, responsibility, and accountability; Recalling the Declaration of the African Union governing democratic elections in Africa and the relevant resolutions of the United Nations General Assembly; Determined to consolidate democratic institutions and culture, to promote good governance and the rule of law and to promote and protect human and people’s rights; Agree as follows:

Chapter I



General Provisions

Article 1 Definitions For the purposes of this Protocol, unless where the context otherwise requires:

326

chapter A

(a) “The African Charter on the Rights and Welfare of the Child” refers to the charter on the promotion and protection of the rights and welfare of the child adopted by the Heads of State and Government of the Organisation of African Unity on 11 July 1990; (b) “Convention on the Rights of the child” means, the convention on the promotion and protection of the rights of the child adopted by the United Nations General Assembly on 20 November 1989; (c) “Convention on the Elimination of Discrimination against Women” refers to the Convention on the Elimination of all forms of Discrimination against women adopted by the United Nations General Assembly on 18 December 1979; (d) “Geneva Conventions” refer to the 4 Conventions regulating the conduct of armed conflict which were adopted in Geneva on 12 August 1949 by the Diplomatic Conference and The Protocols Additional to the Geneva Conventions adopted on 8 June 1977; (e) “Solemn Declaration” refers to the solemn declaration on the equality between men and women instituting parity in Africa, adopted by the Heads of states and Governments of the African Union on 8 July 2004; (f) “Discrimination” means any distinction, exclusion, restriction or preference based on race, sex, language, religion, colour, ancestry or national or ethnic origin, the purpose or the effect of which is to destroy or undermine the recognition, the possession or the exercise, in conditions of equality, of human rights and fundamental freedoms in the political, economic, social and cultural fields or in any other area of life; (g) “Member State” means the Member State of the International Conference on the Great Lakes Region having ratified this protocol or having acceded to it; (h) “ilo” refers to the International Labour Organisation; (i) “Beijing Declaration and Platform of Action of Beijing” means the Declaration and Action Platform adopted at the fourth global summit on women organized by the United Nations in September 1995; (j) “The Protocol related to Women’s Rights in Africa”, refers to the Protocol on Women’s Rights in Africa adopted on 11 June 2003 by the Heads of State and Governments of the African Union; (k) “Resolution 1325” refers to the resolution on the involvement of women in peace and security operations adopted by the United Nations Security Council on 31 October 2000.

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE



Chapter II



The Principles of Constitutional Convergence

327

Article 2 The Member States undertake to abide by the following constitutional principles: (a) The separation of powers; (b) The accession to power through regular, free, fair and transparent elections; (c) The prohibition of unconstitutional change and any other undemocratic means of acceding to or maintaining power; (d) The public participation in decision-making process in accordance with democratic principles and decentralization; (e) The decentralisation of power at all levels of governments; (f) The non-partisan character of the defence and security forces; (g) The secular nature of the state and its institutions; (h) The promotion of national unity of the state and its institutions; (i) The prohibition of any ethnic, religious, racial, gender or regional discrimination; (j) The equality of men and women, including through affirmative action policies; (k) The political pluralism; (l) The freedom of association, assembly and peaceful demonstration; (m) The freedom of expression; (n) The freedom of movement and prohibition of forced exile.

Chapter III

Elections Article 3 Right to Vote Member States shall guarantee all eligible citizens the right to vote and be elected without discrimination. Article 4 Amendment of the Electoral Law No substantial reform of the electoral law should occur during the six (6) months preceding the elections without the agreement of a large majority of social and political actors.

328

chapter A

Article 5 Election Date The elections at all levels shall take place on the dates or during the periods fixed by the constitution or the electoral laws in good time so that the whole electoral process including the settlement of electoral disputes be completed before the end of the mandate stipulated for elected officials. Article 6 Women’s Vote Member States shall take appropriate steps to guarantee that women are accorded the equal right to vote and be elected, to participate in the formulation and implementation of government policies and to hold public office and carry out public functions at all levels of decision-making. Article 7 Independence of Electoral Institutions 1. The institutions charged with organizing the elections shall be independent and non-partisan. Member States shall organize within their jurisdiction appropriate national consultations to determine the nature and form of the said institutions. 2. The principle of gender parity shall be reflected in the composition of these institutions. Article 8 National Registration Systems 1. Each Member State shall ensure that there is established a national registration system. 2. Member States shall cooperate in this regard by exchanging experiences and technical assistance in the production of voters’ registers. Article 9 Establishing Voters Registers The electoral institutions shall maintain transparent and credible voters’ registers, which shall be open to all stakeholders for inspection from time to time. Article 10 Transparency The general organization, the conduct of elections and the declaration of results shall be done in a transparent manner.

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE

329

Article 11 Resolution of Electoral Disputes A credible electoral dispute resolution mechanism pertaining to the financing, organizing and conducting of elections and declaring of the results shall be put in place. Article 12 Role of Civil Society The relevant civil society organizations shall be given the opportunity to participate in voter education, raising awareness about peaceful elections, observation and follow-up of the electoral process. Article 13 Participation of the Conference At the request of any Member State, the International Conference may provide help and assistance in organising and running any election in the requesting Member State. Similarly, the Conference may send an election monitoring or observation mission to the country concerned. Article 14 Observer Mission 1. The Conference shall appoint the head and the members of the observer mission who shall be independent and of a nationality other than that of the State in which the elections are to be held. 2. The observer missions shall respect the principle of gender parity in their composition. Article 15 Duration of the Mission 1. The observer mission shall arrive in the Member State concerned at least seventy-two hours prior to the date of the elections. 2. The observer mission shall cover the entire duration of the elections up to the declaration of the results. Article 16 Neutrality and Confidentiality Members of the observer mission shall be bound by the principles of neutrality and confidentiality and shall not be allowed to make any individual declaration. Any declaration or statement of the observer mission shall be collective

330

chapter A

and can only be made by the head of mission or a spokesperson designated for this purpose. Article 17 Report of Observer Mission 1. The observer mission shall promptly prepare and submit a report to the Inter-Ministerial Committee. 2. The report shall include: (a) The observations made by the mission; (b) The evidence gathered; (c) The assessment of the conduct of the elections in relation to the national electoral legislation and the universally accepted principles; (d) The recommendations on the lessons learnt for the future conduct of elections and observer missions. Article 18 Preparation of the Mission Report Members of the observer mission shall hold a consultative meeting among themselves in order to agree upon the contents of the report before leaving the host Member State. Any member of the mission unable to attend the said meeting shall hand in written comments and observations to the head of mission before leaving the country. The report by the observer mission shall be signed by all members of the mission and submitted to the acting Chairperson by the head of mission not later than fifteen days after the end of the mission. Article 19 Transmission of the Report The report shall be transmitted by the current Chairperson of the InterMinisterial Committee to the Summit which may advise the Member State concerned on the recommendations made.

Chapter IV



The Role of the Defence and the Security Forces in a Democratic System

Article 20 The Role of Defence and Security Forces 1. Defence and security forces shall maintain their republican status and shall be at the service of the Member States to which they belong.

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE

331

2. Their role is to defend the Member State’s sovereignty, territorial integrity and their democratic institutions and may be deployed for tasks of national development. 3. The role of the security forces is to enforce law and order and protect people and property. Article 21 The Non-partisan and Professional Nature of the Defence and Security Forces 1. Defence and security forces shall be non-partisan and shall be answerable to legitimate civil authorities. 2. Civil authorities shall respect the neutrality of the defence forces. Members of defence and security forces shall not take active part in political activity or propaganda. Article 22 Individual Member Rights Subject to the rules and regulations governing their establishment, members of the defence and security forces shall enjoy all the rights of citizens as guaranteed by the constitution. Article 23 Use of Force 1. The use of any type of weapon to disperse non-violent meetings or demonstrations is prohibited. 2. In the case of a violent demonstrations, the minimal use of force may be authorised to the extent necessary to maintain order and security. Article 24 Prohibition of Torture and Arbitrary Practices 1. Defence and security forces shall not resort to torture and other cruel, inhuman and degrading treatment. 2. Defence and security forces shall not harass or arbitrarily arrest parents, members of the family or relatives of the suspect during investigations. Article 25 Civic Education 1. Defence and security forces training curriculum shall include education in constitutional values, international humanitarian law and international human rights as well as principles of the rule of law and democracy.

332

chapter A

2. Each Member State shall endeavor to establish joint training and education programmes between members of defence and security forces and other sectors of society. 3. Similarly, joint regional training with armies of Member States and with the police forces and civil society shall be organised. […]

Chapter VII



Good Governance, the Rule of Law and Human Rights

Article 35 Undertaking Member States undertake to promote good governance, the rule of law and human rights as the foundations of democracy. Article 36 Good Governance 1. Member States recognize that good governance is essential for ensuring social justice, prevention of conflict, safeguarding political stability and peace as well as strengthening democracy. 2. Member States undertake to promote the protection of the environment through institutional capacity building in environmental management and good governance, and to coordinate environmental activities related to human settlement by raising awareness both with governmental and society level. Article 37 Rule of Law Member States recognize that the rule of law not only implies equality before the law and equal protection by the law, but also an independent judicial system, and an efficient and transparent public administration. Article 38 Human Rights Member States recognize that respect for human rights is the best guarantee against threats to peace, political stability and development.

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE

333

Article 39 National and Regional Institutions and Mechanisms for the Protection of Human Rights Member States undertake to establish national and regional institutions and mechanisms to protect human rights and to provide them with the necessary support to perform their duties. Article 40 Mediation 1. Member States undertake to put in place regional mediation mechanisms in order to facilitate access to justice, conflict resolution and reconciliation. 2. Member States further undertake to provide the necessary support to ensure that mediation mechanisms discharge their duties effectively. Article 41 Development of the Media Member States undertake to promote a responsible, professional, liberalized and independent media and guarantee access to information. Article 42 Role of Civil Society 1. Member States recognise the important role that civil society organisations play in a democratic State. 2. In this regard, they undertake to facilitate their involvement in the achievement of the objectives of the present Protocol. Article 43 Fight against Corruption 1. Member States recognize that corruption is an offence and a major obstacle to development, peace and stability in the region. 2. To this end, Member States undertake to fight corruption and ensure transparency in the management and equitable distribution of resources. 3. In this context, Member States undertake to strengthen and/or establish independent anti-corruption bodies with adequate resources and to adopt effective policies and laws to address the problem of corruption at the national and regional levels. 4. Member States undertake to cooperate in order to guarantee the return of stolen goods and misappropriated funds at the expense of a state or member state.

334

chapter A

5. To this end, Member States shall secure the cooperation of the African Union and other relevant organizations. […]

Chapter X

Urgent Measures and Sanctions in case of Threats or Breakdown of Democracy Article 48 Urgent Measures In the event of threats to democracy and a beginning of its breakdown by whatever process and in the event of massive violations of human and peoples’ rights in a Member State, the Summit shall convene an extraordinary session in order to adopt urgent and appropriate measures to put an end to the situation, including the measures and sanctions described in Article 49. Article 49 Sanctions 1. The Conference shall take one or more of the following measures against the Member State concerned: (a) Referring the matter to the African Union and the United Nations for action in accordance with established procedures; (b) Refusal to support the candidatures to elective positions in international organisations presented by the Member State concerned; (c) Refusal to hold any meeting of the International Conference in the Member State concerned; (d) Suspension of the Member State concerned in all bodies of the Conference; during the suspension, the Member State concerned will continue to be bound to pay its contributions for the period of the suspension. 2. The Inter-Ministerial Committee will continue to monitor, encourage and support any effort made by the suspended Member State with a view to returning to normal institutional life and the respect of human rights. Article 50 Practical Modalities of Application 1. Member States undertake to establish national and regional programs on practical modalities of application to ensure the effectiveness of the rule of law, human rights and good governance. 2. Member States undertake to ensure responsibility, professionalism, competence and transparency in public and private sectors.

53 PROTOCOL ON DEMOCRACY AND GOOD GOVERNANCE



Chapter XI



Final Provisions

335

Article 51 1. This Protocol shall be an integral part of the Pact and shall not be subject to separate signature and ratification by the Member States. 2. For any Member State which has ratified the Pact in terms set out in Article 30 of the Pact, this Protocol shall automatically enter into force at the same time as the Pact in accordance with Article 33 of the Pact. 3. Nothing contained in this Protocol shall be construed to be contrary to the provisions of the Pact, the Constitutive Act of the African Union, and the Charter of the United Nations.

chapter B

The Americas Introduction Until now, most of the existing international democracy instruments have been produced in the Americas. In a chronological order, the amendments to the oas Charter by the Protocols of Cartagena de Indias and of Washington (→ Doc 54) were the first documents which introduced reference to democracy into the oas system already in 1988 and 1997 respectively. Notably the Protocol of Washington established a mechanism for sanctioning undemocratic changes of government. The second document, still in a chronological order, among the binding treaty provisions, was “Framework Treaty on Democratic Security in Central America” (→ Doc. 76), adopted by the Central American Integration System (sica) in 1995. sica is a supranational union of eight Central American states dealing with economic, political and social integration matters. The Framework Treaty was signed as a supplementary instrument to the Tegucigalpa Protocol which established the organization on 13 December 1991. The Framework Treaty is widely regarded as a landmark instrument designed to solidify and codify the concept of democratic security in Central America. It replaced the traditional concept of security with a new idea according to which almost all problems of the state system could be relegated to the security sector. The second important treaty instrument is the “Ushuaia Protocol on Democratic Commitment in the Southern Common Market, the Republic of Bolivia and the Republic of Chile” of 1998 (→ Doc. 74). The Southern Common Market (mercosur) is South America’s leading trading bloc. Its purpose is to promote the free movement of capital, goods, people and services among its member states. The organization was established in 1991 and encompasses Argentina, Brazil, Paraguay, Uruguay, Venezuela and Bolivia. At the beginning mercosur was mainly trade-oriented. Therefore, the Treaty of Asunción, which established the organization, does not mention democracy. The organization’s neutrality towards democracy was certainly also due to the internal political situation in some of its member states. However, since the signing of the Ushuaia Protocol, mercosur has abandoned its neutral position concerning the internal organization of its members. In fact, the new attitude towards democracy was provoked by an attempted coup d’état in Paraguay. The member states of mercosur came to an agreement on the Protocol after General Lino Oviedo had tried to overthrow the government of President Juan Carlos

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_011

Introduction

337

Wasmosy in 1996. The Ushuaia Protocol is therefore the result of a collective experience of democracy being endangered in one of the member states. However, it took five more years, until the so-called Democracy Clause entered into force on 18 December 2001. The major achievement of the Ushuaia Protocol must be seen in the creation of a contractual obligation of the member states to establish internal democratic structures and in its clear emphasis that fully functioning democratic institutions are an indispensable condition for the entire integration process within mercosur. The protocol thus added prestige and credibility to mercosur and its member states. A further important document is the Additional Protocol to the Cartagena Agreement “ANDEAN Community Commitment to Democracy” of 10 June 2000 (→ Doc. 77). The “Cartagena Agreement” of 1969 is the founding document of the Andean Pact (renamed into Andean Community in 1996), an Andean sub-regional integration organization consisting today of Bolivia, Colombia, Ecuador and Peru, with Argentina, Brazil, Paraguay, Uruguay and Chile having an associate member status. The Cartagena Agreement was supplemented by the Additional Protocol on a “Commitment to Democracy” on 10 June 2000. In fact, this document is very similar to the Ushuaia Protocol. The parallels start with an analogical structure of the texts and continue with practically identical substantive clauses, envisaging, for example, quite similar procedures in case of a breakdown of democracy in a state party. Finally, the “Additional Protocol to the Constitutive Treaty of the Union of South American Nations on Commitment to Democracy” of 2010 (→ Doc. 81) deserves mentioning. The Union of South American Nations (unasur) is a regional organization of twelve countries which was set up in 2008 to foster regional integration on issues including democracy. The creation of the unasur was inspired by and also modelled after the prototype of the European Union. The so-called Democratic Clause was signed in the city of Georgetown, Guyana, by the Heads of State and Government of the member countries of unasur on 26 November 2010. It entered into force on 19 March 2014. Like other texts mentioned above, the document reiterates the commitment of the organization to democracy and its condemnation of any unconstitutional means of overthrowing government. The protocol is a reaction to attempted or successful coups d’état in Honduras (2009), Venezuela (2008), Bolivia (2008) and Ecuador (2010). In view of this origin, the document sends a clear sign that any unconstitutional usurpation of power will not be accepted. At the same time, unasur thus underlined that democracy is of paramount importance for the entire organization. With regard to international treaties it can in sum be said that, in contrast to other regions of the world, the states of the Americas double continent have

338

chapter B

produced a number of important binding documents which specifically address the topic of democracy. With regard to all other, i.e. non-binding documents, specific emphasis must be put on the documents of the Organization of American States (oas). The oas was founded in 1948 with the signing of the Charter of the oas (→ Doc. 54). Today the organization gathers all 35 independent states of the Americas and is the most important political, juridical and social governmental institution in this hemisphere. The most important oas-document of this compilation is the “Inter-American Democratic Charter” (→ Doc. 58), which was adopted on 11 September 2001 by a special session of the General Assembly of the oas, held in Lima, Peru. Article 1 of this Declaration is of particular importance, because it entails a right of the peoples of America to democracy and a corresponding obligation to democracy which is directed at the governments of the oas member states. The clause reads: “The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.” The other provisions of the first section substantiate the notion of democracy as contained in the Inter-American Democratic Charter. In the other sections democracy is linked to topics such as human rights, integral development, poverty and electoral observation. The fundamental importance of the charter is moreover underlined by the fact that it was referred to in later documents of the organization. One example is the “Social Charter of the Americas” of 2012 (→ Doc. 66), which in its second p ­ reamble consideration reads: “TAKING INTO ACCOUNT that the Inter-American Demo­cratic Charter recognizes that democracy and social and e­ conomic development are interdependent and mutually reinforcing, and that promotion and observance of economic, social, and cultural rights are inherently linked to ­integral development, equitable economic growth, and the consolidation of democracy and the rule of law in the states of the Hemisphere”. The Charter was complemented by a resolution entitled “Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter” (→ Doc. 62), which has already been reaffirmed several times by the General Assembly of the oas. The topic of democracy is also addressed in a number of soft law instruments which have been adopted in the context of the Rio Group. The Rio Group was an informal political forum comprising a number of Latin American and some Caribbean states. It was started on 18 December 1986 by means of the Declaration of Rio de Janeiro. On 3 December 2011 the Rio Group merged with the Community of Latin American and Caribbean States (celac), and continues as a regional mechanism for political dialogue and cooperation, now encompassing all 33 countries belonging to Latin America and the Caribbean. In the context of the Rio Group two important documents on

Introduction

339

democracy were produced. The “Declaration on the Defence of Democracy” (→ Doc. 70), adopted on 24 August 1997 by the eleventh Summit of Heads of State and Government of the Rio Group stressed the conviction that “representative democracy is the foundation of the legitimacy of political systems”. The second instrument is the “Cartagena Commitment to Democracy” of 2000 (→ Doc. 71), which is a concise but nevertheless convincing commitment to democracy. The commitment to democracy of the former Rio Group is carried on by celac. This is evidenced by the “Special Declaration about the Defense of Democracy and Constitutional Order in the Community of Latin American and Caribbean States” (→ Doc. 73), signed in the city of Caracas, Venezuela, on 3 December 2011. In this declaration the signatories underline “that democracy is a universal value that is part of the historical heritage of the Rio Group”.

On the democracy documents in the Americas, see Vasiliki Saranti, A System of Collective Defense of Democracy: The Case of the Inter-American Democratic Charter, in: Goettingen Journal of International Law 3 (2011), p. 675–714; Hugo de Zela Martinez, The Organization of American States and Its Quest for Democracy in the Americas, in: Yale Journal of International Affairs 8 (2013), p. 23–36; Andrew F. Cooper, The Making of the Inter‐American Democratic Charter: A Case of Complex Multilateralism, in: International Studies Perspectives 5 (2004), p. 92–113; Barry S. Levitt, A Desultory Defense of Democracy: oas Resolution 1080 and the Inter-American Democratic Charter, in: Latin American Politics and Society 48 (2006), p. 93–123; Ellen L. Lutz, Strengthening Core Values in the Americas: Regional Commitment to Democracy and the Protection of Human Rights, in: Houston Journal of International Law 19 (1996–1997), p. 643–658; César G. Trujillo, The Inter-American Democratic Charter at Ten: A Commitment by the Americas to the Defense and Promotion of Democracy, in: Latin American Policy 3 (2012), p. 18–25; Dexter S. Boniface, Is There a Democratic Norm in the Americas? An Analysis of the Organization of American States, in: Global Governance 8 (2002), p. 365–381.

340

chapter B

I

Organization of American States

54

Charter of the Organization of American States

unts 1948, Vol. 119, 48, signed in Bogotá (Columbia), 30 April 1948 (9th International Conference of American States), entered into force 13th December 1951; Art. 2 amended by the Protocol of Cartagena de Indias, signed on 05 December 1985 (14th special session of the General Assembly), entered into force 16 November 1988; Art. 2 and 9 amended by the Protocol of Washington, signed on 14 December 1992 (16th special session of the General Assembly), entered into force 25 September 1997 In the Name of their Peoples, the States Represented At the Ninth International Conference of American States Convinced that the historic mission of America is to offer to man a land of liberty and a favorable environment for the development of his personality and the realization of his just aspirations; Conscious that that mission has already inspired numerous agreements, whose essential value lies in the desire of the American peoples to live together in peace and, through their mutual understanding and respect for the sovereignty of each one, to provide for the betterment of all, in independence, in equality and under law; Convinced that representative democracy is an indispensable condition for the stability, peace and development of the region; Confident that the true significance of American solidarity and good neighborliness can only mean the consolidation on this continent, within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man; Persuaded that their welfare and their contribution to the progress and the civilization of the world will increasingly require intensive continental cooperation; Resolved to persevere in the noble undertaking that humanity has conferred upon the United Nations, whose principles and purposes they solemnly reaffirm; Convinced that juridical organization is a necessary condition for security and peace founded on moral order and on justice; and

54 Organization of American States

341

In accordance with Resolution IX of the Inter-American Conference on Problems of War and Peace, held in Mexico City, Have agreed upon the following

Charter of The Organization of American States Chapter I: Nature and Purposes

[…] Article 2 The Organization of American States, in order to put into practice the principles on which it is founded and to fulfill its regional obligations under the Charter of the United Nations, proclaims the following essential purposes: (a) To strengthen the peace and security of the continent; (b) To promote and consolidate representative democracy, with due respect for the principle of nonintervention; (c) To prevent possible causes of difficulties and to ensure the pacific settlement of disputes that may arise among the Member States; (d) To provide for common action on the part of those States in the event of aggression; (e) To seek the solution of political, juridical, and economic problems that may arise among them; (f) To promote, by cooperative action, their economic, social, and cultural development; (g) To eradicate extreme poverty, which constitutes an obstacle to the full democratic development of the peoples of the hemisphere; and (h) To achieve an effective limitation of conventional weapons that will make it possible to devote the largest amount of resources to the economic and social development of the Member States. Chapter II: Principles Article 3 The American States reaffirm the following principles: (a) International law is the standard of conduct of States in their reciprocal relations; (b) International order consists essentially of respect for the personality, sovereignty, and independence of States, and the faithful fulfillment

342

chapter B

of obligations derived from treaties and other sources of international law; (c) Good faith shall govern the relations between States; (d) The solidarity of the American States and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy; (e) Every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State. Subject to the foregoing, the American States shall cooperate fully among themselves, independently of the nature of their political, economic, and social systems; (f) The elimination of extreme poverty is an essential part of the promotion and consolidation of representative democracy and is the common and shared responsibility of the American States; (g) The American States condemn war of aggression: victory does not give rights; (h) An act of aggression against one American State is an act of aggression against all the other American States; (i) Controversies of an international character arising between two or more American States shall be settled by peaceful procedures; (j) Social justice and social security are bases of lasting peace; (k) Economic cooperation is essential to the common welfare and prosperity of the peoples of the continent; (l) The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex; (m) The spiritual unity of the continent is based on respect for the cultural values of the American countries and requires their close cooperation for the high purposes of civilization; (n) The education of peoples should be directed toward justice, freedom, and peace. […]

Chapter III: Members

Article 9 A Member of the Organization whose democratically constituted government has been overthrown by force maybe suspended from the exercise of the right to participate in the sessions of the General Assembly, the Meeting of Consultation,

54 Organization of American States

343

the Councils of the Organization and the Specialized Conferences as well as in the commissions, working groups and any other bodies established. (a) The power to suspend shall be exercised only when such diplomatic initiatives undertaken by the Organization for the purpose of promoting the restoration of representative democracy in the affected Member State have been unsuccessful; (b) The decision to suspend shall be adopted at a special session of the General Assembly by an affirmative vote of two-thirds of the Member States; (c) The suspension shall take effect immediately following its approval by the General Assembly; (d) The suspension notwithstanding, the Organization shall endeavour to undertake additional diplomatic initiatives to contribute to the re-establishment of representative democracy in the affected Member State; (e) The Member which has been subject to suspension shall continue to fulfill its obligations to the Organization; (f) The General Assembly may lift the suspension by a decision adopted with the approval of two-thirds of the Member States; (g) The powers referred to in this article shall be exercised in accordance with this Charter. […]

344

chapter B

55 Santiago Commitment to Democracy and the Renewal of the Inter-American System Adopted by the General Assembly, Santiago (Chile), 4 June 1991 (3rd plenary session) The Ministers of Foreign Affairs and Heads of Delegation of the member states of the Organization of American States, meeting in Santiago, Chile, as the ­representatives of their democratically elected governments to the twenty-first regular session of the General Assembly of the oas; Aware that profound international political and economic changes and the end of the cold war open up new opportunities and responsibilities for concerted action by all countries through global and regional organizations, as well as in their bilateral relationships; Bearing in mind that the changes towards a more open and democratic international system are not completely established, and that therefore, cooperation must be encouraged and strengthened so that those favorable trends may continue; Recognizing the need to advance decisively towards a just and democratic order based on full respect for international law, the peaceful settlement of disputes, solidarity, and the revitalization of multilateral diplomacy and of international organizations; Mindful that representative democracy is the form of government of the region and that its effective exercise, consolidation, and improvement are shared priorities; Reaffirming that the principles enshrined in the oas Charter a d the ideals of peace, democracy, social justice, comprehensive development and solidarity are the permanent foundation of the inter-American system; Recognizing that cooperation to guarantee the peace and security of the hemisphere is one of the essential purposes consecrated in the Charter of the Organization of American States (oas), and that the proliferation of arms adversely affects international security and takes resources away from the economic and social development of the peoples of the member states; Resolved to work for the intensification of the struggle against extreme poverty and the elimination of the economic and social inequalities in each nation and among the nations of the hemisphere; Noting with interest the report of the consultation group on the renewal of the inter-American system; and

55 Santiago Commitment to Democracy

345

Convinced that the oas is the political forum for dialogue, understanding, and cooperation among all the countries of the hemisphere, whose potential, enhanced by the admission of new member states, must be increased to make it an effective voice in the world for the decisions of its members, DECLARE: Their inescapable commitment to the defense and promotion of representative democracy and human rights in the region, within the framework of respect for the principles of self-determination and non-intervention; Their firm resolve to stimulate the process of renewal of the Organization of American States, to make it more effective and useful in the application of its guiding principles and for the attainment of its objectives; Their determination to continue to prepare and develop a relevant agenda for the Organization, in order to respond appropriately to the new challenges and demands in the world and in the region, and their decision to assign ­special priority on that agenda, during the present decade, to the following actions: a. Intensifying the common struggle and cooperative action against extreme poverty to help reduce economic and social inequalities in the hemisphere, and thereby strengthen the promotion and consolidation of democracy in the region; b. Strengthening representative democracy as an expression of the legitimate and free manifestation of the will of the people, always respecting the sovereignty and independence of member states; c. Promoting the observance and defense of human rights in accordance with the inter-American instruments in force and through the specific existing agencies; and ensuring that no form of discrimination becomes an obstacle to political participation by undervalued or minority ethnic groups; d. Promoting the progressive liberalization of trade and the, expansion of investments, access to scientific and technological knowledge, and the reduction of the foreign debt of the countries, of the region and, from this perspective, support for the “Enterprise for the Americas Initiative” and the Uruguay Round of the gatt negotiations; e. Contributing to the protection of our environment by all for the benefit of present and future generations, thus assuring sustainable development in the region; f. Encouraging the adoption and execution of appropriate measures to prevent and combat the illicit use and production of narcotic drugs and psychotropic substances, and traffic therein, chemical precursors and money laundering, and related clandestine traffic in arms, ammunitions, and explosives;

346

chapter B

g. Favoring integration processes in the region and, to this end, adopting a program of work designed, inter alia, to harmonize legislation in the region, particularly that of the civil and common law systems; h. Promoting and intensifying cultural, educational, scientific, and technological exchanges as instruments for integration, with full respect for the cultural heritage of each of the member states; i. Increasing technical cooperation and encouraging a transfer of technology to enhance the capabilities for economic growth of the countries in the region. Their decision to initiate a process of consultation on hemispheric security in light of the new conditions in the region and the world, from an updated and comprehensive perspective of security and disarmament, including the subject of all forms of proliferation of weapons and instruments of mass destruction, so that the largest possible volume of resources may be devoted to the economic and social development of the member states; and an appeal to other competent organizations in the world to join in the efforts of the oas. Their decision to adopt efficacious, timely, and expeditious procedures to ensure the promotion and defense of representative democracy, in keeping with the Charter of the Organization of American States. Consequently, the Ministers of Foreign Affairs and the Heads of Delegation of the member states of the oas, in the name of their peoples, declare their firm political commitment to the promotion and protection of human rights and representative democracy, as indispensable conditions for the stability, peace, and development of the region, and for the success of the changes and renewal that the inter-American system will require at the threshold of the twenty-first century.

56 AG/RES 1080 – Representative Democracy

56

347

Representative Democracy

AG/RES 1080 (XXI-O/91), adopted by the General Assembly, Washington D.C. (usa), 5 June 1991 (5th plenary session) WHEREAS: The Preamble of the Charter of the oas establishes that representative democracy is an indispensable condition for the stability, peace, and development of the region; Under the provisions of the Charter, one of the basic purposes of the oas is to promote and consolidate representative democracy, with due respect for the principle of non-intervention; Due respect must be accorded to the policies of each member country in regard to the recognition of states and governments; In view of the widespread existence of democratic governments in the Hemisphere, the principle, enshrined in the Charter, that the solidarity of the American states and the high aims which it pursues require the political organization of those states to be based on effective exercise of representative democracy must be made operative; and The region still faces serious political, social, and economic problems that may threaten the stability of democratic governments, THE GENERAL ASSEMBLY RESOLVES: 1. To instruct the Secretary General to call for the immediate convocation of a meeting of the Permanent Council in the event of any occurrences giving rise to the sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states, in order, within the framework of the Charter, to examine the situation, decide on and convene and ad hoc meeting of the Ministers of Foreign Affairs, or a special session of the General Assembly, all of which must take place within a ten-day period. 2. To state that the purpose of the ad hoc meeting of Ministers of Foreign Affairs or the special session of the General Assembly shall be to look into the events collectively and adopt any decisions deemed appropriate, in accordance with the Charter and international law. 3. To instruct the Permanent Council to devise a set of proposals that will serve as incentives to preserve and strengthen democratic systems, based on international solidarity and cooperation, and to apprise the General Assembly thereof at its twenty-second regular session.

348

chapter B

57 Declaration of Managua for the Promotion of Democracy and Development Adopted by the General Assembly, Managua (Nicaragua), 8 June 1993 (4th plenary session) The Ministers of Foreign Affairs and heads of delegation of the member states of the Organization of American States (oas), meeting on the occasion of the twenty-third regular session of the oas General Assembly in Managua, Republic of Nicaragua, Stressing that the Organization of American States created at the beginning of this decade valuable mechanisms for the defense of democratic values in the Hemisphere, with due respect for the principle of nonintervention, inspired by the precept that the solidarity of the American states and the high aims which are sought through it require the political organization of those states on the basis of the effective exercise of representative democracy; Recalling the important contributions made in this regard by the Santiago Commitment to Democracy and the Renewal of the Inter-American System, by resolution AG/RES. 1080 (XXI-O/91) “Representative Democracy”, by the Declaration of Nassau, and by the “Protocol of Washington” on amendments to the Charter of the Organization; Recognizing that the progress made in defense of democratic institutions must be complemented by mechanisms which foster and reinforce democratic government in an integral way, thereby improving its ability to face the challenges of economic, social, and cultural development in all the member states; Aware that the Organization has concentrated to a large extent on seeking solutions to crises and that what is needed, in addition, is more effort directed towards preventing such crises; Bearing in mind the part the Organization has been playing in fostering  understanding, dialogue, and reconciliation in some member states, with due respect for the principles of nonintervention and the right of peoples to determine their own destiny, as a contribution to strengthening democracy; Convinced that seeking sustainable development has required extraordinary efforts and sacrifice on the part of the developing countries of the Hemisphere, and that more cooperation and external support is urgently needed to ensure that those efforts strengthen them with tangible fruits of growth, avoiding the frustration to which a lack of results could lead; Recognizing the link between improving the quality of life of the American peoples and consolidating democracy;

57 Declaration of Managua

349

Conscious that the ongoing threats to the stability of democratic systems in the Hemisphere call for a new, dynamic, and comprehensive look at the role of the Organization; Considering that there is an awareness in the region of the need to improve legal and administrative structures so as to prevent the obstruction of governance that fosters the harmful phenomenon of corruption and discredits authorities and institutions; Reaffirming that the people of the Americas should play a leading role in fighting racism and racial discrimination; and Convinced that no problem facing the member states justifies a breach of the system of representative democracy, DECLARE: 1. The need to consolidate, in the context of the cultural identity of each nation in the Hemisphere, democratic structures and systems which encourage freedom and social justice, safeguard human rights, and favor progress. 2. Their firm belief that democracy, peace, and development are inseparable and indivisible parts of a renewed and integral vision of solidarity in the Americas; and that the ability of the Organization to help preserve and strengthen democratic structures in the region will depend on the implementation of a strategy based on the interdependence and complementarity of those three values. 3. Their conviction that the Organization’s mission does not exhaust itself in the defense of democracy wherever its fundamental values and principles have collapsed, but also calls for ongoing and creative work to consolidate democracy as well as a continuing effort to prevent and anticipate the very causes of the problems that work against democratic rule. 4. Their certainty that consolidating democracy requires initiatives and programs aimed both at prevention and incentives for its development, and entails extraordinary efforts to achieve, among other aims, the eradication of the extreme poverty which undermines the full development of democracy among the peoples of the Hemisphere. It therefore calls for the implementation of programs to meet such basic needs as food, health, education, housing, and productive employment, thereby laying the foundations for inter-American cooperation based on the common and solidary goal of integral development. 5. Their opinion that the support and cooperation provided by the oas toward strengthening democratic institutions through programs to help the states that request them to enhance their own ability to improve their schemes of political organization are fundamental to this new hemispheric commitment. In this regard, they underscore the contribution of the Unit for the Promotion of Democracy and of the Permanent Council in preparing proposed

350

chapter B

i­ ncentives for the preservation and strengthening of democratic systems in the Hemisphere. 6. Their conviction that this hemisphere-wide commitment should address the problem of safeguarding human rights with renewed emphasis on the promotion of civil, political, economic, social, and cultural rights. The identification of human rights violations should be accompanied by educational and promotional activities to prevent situations in which human rights are threatened. 7. Their support for the processes of modernizing administrative and political structures in those states that request it, in order that governmental action may meet the increasing demands of their people for more effectiveness and more ethical governance. 8. Their certainty that the strengthening of democratic systems requires, in particular cases, efforts to achieve national reconciliation and thereby foster a democratic culture based on the balance and independence of the branches of government, on dialogue and the search for consensus, on respect for the role and responsibility of minorities and of all political groups, and on citizens’ participation and peaceful political interaction. 9. Their conviction that all sectors of society in the countries of the Hemisphere must cooperate in a constructive way in strengthening democracy, including governments and political oppositions, and their firm belief that each state should undertake a continuing review of its public administration with a view to improving governance and the relationship between representatives and those represented, in an effort to strengthen democracy, with the cooperation of the oas, and with due respect for the principle of nonintervention. 10. Their firm belief that this hemispheric commitment requires that its peoples be given greater opportunity to develop, and that that entails closer cooperation founded on a commonality of Inter-American interests, genuine interdependence, reciprocal benefits, and the spirit of shared responsibility which requires that the member states take account of the impact of their actions on development and democratic processes in other member states. 11. Their commitment to continuing and expanding dialogue on hemispheric security among the member states, in an integral and updated approach that takes account of the new international situation with a view to strengthening the peaceful tradition of the Hemisphere and actively contributing to international security and world peace. 12. Their conviction that it is necessary to initiate a broad discussion of the main aspects of integral development, including bilateral and multilateral  financial cooperation, investment and debt, expansion and opening up of intra-regional trade, scientific and technological cooperation, and the environment. Inspired by

57 Declaration of Managua

351

renewed political will, such-a discussion should pave the way for a realistic strategy taking advantage of the consensus reached concerning integral development. 13. Their reaffirmation that protection of the environment is fundamental to sustainable development because of its repercussions and effects on the quality of life of people today and its potential for improving the lives of future generations. 14. Their certainty that education plays a vital role in the formation of a new democratic culture of peace and non-violence and that the member states of the Organization will assign high priority to training human resources. 15. Their certainty that trade agreements and especially free trade agreements play an important role in facilitating the growth and consolidation of democracy and, in this regard, their support for the trend towards trade liberalization and expansion. 16. Their commitment to continue working against the illicit production, traffic, and consumption of drugs and related crimes, among them the smuggling of arms, ammunition, and explosives. For this to be successful there will have to be more cooperation among all the countries of the region and in particular of the wider international community in general, to the benefit of peace within each country. 17. Their appreciation of the valuable work done by the oas in assisting national reconciliation and the consolidation of democratic institutions in some countries of the region. In this context, they note the dynamic role played by the Organization in the country hosting this assembly, where a broad support program, including the ongoing presence of the International Commission for Support and Verification, merits their support. 18. Their recognition of the importance of technology transfers for development and hence their support for the concept of a Common Market of Knowledge initiative which will allow member states of the oas to share experiences and advances in science and technology, given the urgent need to intensify efforts to speed up the scientific and technological development of Latin America and the Caribbean, in order to boost output, broaden opportunities, for progress, facilitate sustainable development, and enhance the competitiveness of the economies of the region. 19. Their conviction that an important objective for the strengthening of ­representative democracy in the Hemisphere is that the armed forces be subordinate to the legitimately constituted civilian authority and that they act within the bounds of the constitution and respect for human rights. 20. This declaration will be called “Declaration of Managua for the Promotion of Democracy and Development”.

352 58

chapter B

Inter-American Democratic Charter

Adopted by the General Assembly, Lima (Peru), 11 September 2011 THE GENERAL ASSEMBLY, Considering that the Charter of the Organization of American States recognizes that representative democracy is indispensable for the stability, peace, and development of the region, and that one of the purposes of the oas is to promote and consolidate representative democracy, with due respect for the principle of nonintervention; Recognizing the contributions of the oas and other regional and subregional mechanisms to the promotion and consolidation of democracy in the Americas; Recalling that the Heads of State and Government of the Americas, gathered at the Third Summit of the Americas, held from April 20 to 22, 2001 in Quebec City, adopted a democracy clause which establishes that any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summits of the Americas process; Bearing in mind that existing democratic provisions in regional and subregional mechanisms express the same objectives as the democracy clause adopted by the Heads of State and Government in Quebec City; Reaffirming that the participatory nature of democracy in our countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere; Considering that solidarity among and cooperation between American states require the political organization of those states based on the effective exercise of representative democracy, and that economic growth and social development based on justice and equity, and democracy are interdependent and mutually reinforcing; Reaffirming that the fight against poverty, and especially the elimination of extreme poverty, is essential to the promotion and consolidation of democracy and constitutes a common and shared responsibility of the American states; Bearing in mind that the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy; Reaffirming that the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society, and recognizing the importance of the continuous development and strengthening of the interAmerican human rights system for the consolidation of democracy;

58 Inter-American Democratic Charter

353

Considering that education is an effective way to promote citizens’ awareness concerning their own countries and thereby achieve meaningful participation in the decision-making process, and reaffirming the importance of human resource development for a sound democratic system; Recognizing that a safe environment is essential to the integral development of the human being, which contributes to democracy and political stability; Bearing in mind that the Protocol of San Salvador on Economic, Social, and Cultural Rights emphasizes the great importance of the reaffirmation, development, improvement, and protection of those rights in order to consolidate the system of representative democratic government; Recognizing that the right of workers to associate themselves freely for the defense and promotion of their interests is fundamental to the fulfillment of democratic ideals; Taking into account that, in the Santiago Commitment to Democracy and the Renewal of the Inter-American System, the ministers of foreign affairs expressed their determination to adopt a series of effective, timely, and expeditious procedures to ensure the promotion and defense of representative democracy, with due respect for the principle of nonintervention; and that resolution AG/RES. 1080 (XXI-O/91) therefore established a mechanism for collective action in the case of a sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically-elected government in any of the Organization’s member states, thereby fulfilling a long-standing aspiration of the Hemisphere to be able to respond rapidly and collectively in defense of democracy; Recalling that, in the Declaration of Nassau [AG/DEC. 1 (XXII-O/92)], it was agreed to develop mechanisms to provide assistance, when requested by a member state, to promote, preserve, and strengthen representative democracy, in order to complement and give effect to the provisions of resolution AG/RES. 1080 (XXI-O/91); Bearing in mind that, in the Declaration of Managua for the Promotion of Democracy and Development [AG/DEC. 4 (XXIII-O/93)], the member states expressed their firm belief that democracy, peace, and development are inseparable and indivisible parts of a renewed and integral vision of solidarity in the Americas; and that the ability of the Organization to help preserve and streng­then democratic structures in the region will depend on the implementation of a strategy based on the interdependence and complementarity of those values; Considering that, in the Declaration of Managua for the Promotion of Democracy and Development, the member states expressed their conviction that the Organization’s mission is not limited to the defense of democracy

354

chapter B

wherever its fundamental values and principles have collapsed, but also calls for ongoing and creative work to consolidate democracy as well as a continuing effort to prevent and anticipate the very causes of the problems that affect the democratic system of government; Bearing in mind that the Ministers of Foreign Affairs of the Americas, at the thirty-first regular session of the General Assembly, held in San Jose, Costa Rica, in keeping with express instructions from the Heads of State and Government gathered at the Third Summit of the Americas, in Quebec City, accepted the base document of the Inter-American Democratic Charter and entrusted the Permanent Council of the Organization with strengthening and expanding the document, in accordance with the oas Charter, for final adoption at a special session of the General Assembly in Lima, Peru; Recognizing that all the rights and obligations of member states under the oas Charter represent the foundation on which democratic principles in the Hemisphere are built; and Bearing in mind the progressive development of international law and the advisability of clarifying the provisions set forth in the oas Charter and related basic instruments on the preservation and defense of democratic institutions, according to established practice, RESOLVES: To adopt the following: INTER-AMERICAN DEMOCRATIC CHARTER

I



Democracy and the Inter-American System

Article 1 The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it. Democracy is essential for the social, political, and economic development of the peoples of the Americas. Article 2 The effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the Organization of American States. Representative democracy is strengthened and deepened by permanent, ethical, and responsible participation of the citizenry within a legal framework conforming to the respective constitutional order.

58 Inter-American Democratic Charter

355

Article 3 Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government. Article 4 Transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy. The constitutional subordination of all state institutions to the legally constituted civilian authority and respect for the rule of law on the part of all institutions and sectors of society are equally essential to democracy. Article 5 The strengthening of political parties and other political organizations is a priority for democracy. Special attention will be paid to the problems associated with the high cost of election campaigns and the establishment of a balanced and transparent system for their financing. Article 6 It is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy.

II



Democracy and Human Rights

Article 7 Democracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments.

356

chapter B

Article 8 Any person or group of persons who consider that their human rights have been violated may present claims or petitions to the inter-American system for the promotion and protection of human rights in accordance with its established procedures. Member states reaffirm their intention to strengthen the inter-American system for the protection of human rights for the consolidation of democracy in the Hemisphere. Article 9 The elimination of all forms of discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the Americas contribute to strengthening democracy and citizen participation. Article 10 The promotion and strengthening of democracy requires the full and effective exercise of workers’ rights and the application of core labor standards, as recognized in the International Labour Organization (ilo) Declaration on Fundamental Principles and Rights at Work, and its Follow-up, adopted in 1998, as well as other related fundamental ilo conventions. Democracy is strengthened by improving standards in the workplace and enhancing the quality of life for workers in the Hemisphere.

III



Democracy, Integral Development, and Combating Poverty

Article 11 Democracy and social and economic development are interdependent and are mutually reinforcing. Article 12 Poverty, illiteracy, and low levels of human development are factors that adversely affect the consolidation of democracy. The oas member states are committed to adopting and implementing all those actions required to generate productive employment, reduce poverty, and eradicate extreme poverty, taking into account the different economic realities and conditions of the

58 Inter-American Democratic Charter

357

countries of the Hemisphere. This shared commitment regarding the problems associated with development and poverty also underscores the importance of maintaining macroeconomic equilibria and the obligation to strengthen social cohesion and democracy. Article 13 The promotion and observance of economic, social, and cultural rights are inherently linked to integral development, equitable economic growth, and to the consolidation of democracy in the states of the Hemisphere. Article 14 Member states agree to review periodically the actions adopted and carried out by the Organization to promote dialogue, cooperation for integral development, and the fight against poverty in the Hemisphere, and to take the appropriate measures to further these objectives. Article 15 The exercise of democracy promotes the preservation and good stewardship of the environment. It is essential that the states of the Hemisphere implement policies and strategies to protect the environment, including application of various treaties and conventions, to achieve sustainable development for the benefit of future generations. Article 16 Education is key to strengthening democratic institutions, promoting the development of human potential, and alleviating poverty and fostering greater understanding among our peoples. To achieve these ends, it is essential that a quality education be available to all, including girls and women, rural inhabitants, and minorities.

IV



Strengthening and Preservation of Democratic Institutions

Article 17 When the government of a member state considers that its democratic political institutional process or its legitimate exercise of power is at risk, it may request assistance from the Secretary General or the Permanent Council for the strengthening and preservation of its democratic system.

358

chapter B

Article 18 When situations arise in a member state that may affect the development of its democratic political institutional process or the legitimate exercise of power, the Secretary General or the Permanent Council may, with prior consent of the government concerned, arrange for visits or other actions in order to analyze the situation. The Secretary General will submit a report to the Permanent Council, which will undertake a collective assessment of the situation and, where necessary, may adopt decisions for the preservation of the democratic system and its strengthening. Article 19 Based on the principles of the Charter of the oas and subject to its norms, and in accordance with the democracy clause contained in the Declaration of Quebec City, an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to its government’s participation in sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization, the specialized conferences, the commissions, working groups, and other bodies of the Organization. Article 20 In the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, any member state or the Secretary General may request the immediate convocation of the Permanent Council to undertake a collective assessment of the situation and to take such decisions as it deems appropriate. The Permanent Council, depending on the situation, may undertake the necessary diplomatic initiatives, including good offices, to foster the restoration of democracy. If such diplomatic initiatives prove unsuccessful, or if the urgency of the situation so warrants, the Permanent Council shall immediately convene a special session of the General Assembly. The General Assembly will adopt the decisions it deems appropriate, including the undertaking of diplomatic initiatives, in accordance with the Charter of the Organization, international law, and the provisions of this Democratic Charter. The necessary diplomatic initiatives, including good offices, to foster the restoration of democracy, will continue during the process.

58 Inter-American Democratic Charter

359

Article 21 When the special session of the General Assembly determines that there has been an unconstitutional interruption of the democratic order of a member state, and that diplomatic initiatives have failed, the special session shall take the decision to suspend said member state from the exercise of its right to participate in the oas by an affirmative vote of two thirds of the member states in accordance with the Charter of the oas. The suspension shall take effect immediately. The suspended member state shall continue to fulfill its obligations to the Organization, in particular its human rights obligations. Notwithstanding the suspension of the member state, the Organization will maintain diplomatic initiatives to restore democracy in that state. Article 22 Once the situation that led to suspension has been resolved, any member state or the Secretary General may propose to the General Assembly that suspension be lifted. This decision shall require the vote of two thirds of the member states in accordance with the oas Charter.

V



Democracy and Electoral Observation Missions

Article 23 Member states are responsible for organizing, conducting, and ensuring free and fair electoral processes. Member states, in the exercise of their sovereignty, may request that the Organization of American States provide advisory services or assistance for strengthening and developing their electoral institutions and processes, including sending preliminary missions for that purpose. Article 24 The electoral observation missions shall be carried out at the request of the member state concerned. To that end, the government of that state and the  Secretary General shall enter into an agreement establishing the scope and coverage of the electoral observation mission in question. The member state shall guarantee conditions of security, free access to information, and full cooperation with the electoral observation mission. Electoral observation missions shall be carried out in accordance with the principles and norms of the oas. The Organization shall ensure that these

360

chapter B

­missions are effective and independent and shall provide them with the necessary resources for that purpose. They shall be conducted in an objective, impartial, and transparent manner and with the appropriate technical expertise. Electoral observation missions shall present a report on their activities in a timely manner to the Permanent Council, through the General Secretariat. Article 25 The electoral observation missions shall advise the Permanent Council, through the General Secretariat, if the necessary conditions for free and fair elections do not exist. The Organization may, with the consent of the state concerned, send special missions with a view to creating or improving said conditions.

VI



Promotion of a Democratic Culture

Article 26 The oas will continue to carry out programs and activities designed to promote democratic principles and practices and strengthen a democratic culture in the Hemisphere, bearing in mind that democracy is a way of life based on liberty and enhancement of economic, social, and cultural conditions for the peoples of the Americas. The oas will consult and cooperate on an ongoing basis with member states and take into account the contributions of civil society organizations working in those fields. Article 27 The objectives of the programs and activities will be to promote good governance, sound administration, democratic values, and the strengthening of political institutions and civil society organizations. Special attention shall be given to the development of programs and activities for the education of children and youth as a means of ensuring the continuance of democratic values, including liberty and social justice. Article 28 States shall promote the full and equal participation of women in the political structures of their countries as a fundamental element in the promotion and exercise of a democratic culture.

59 Declaration of Santiago on Democracy and Public Trust

361

59 Declaration of Santiago on Democracy and Public Trust: A New Commitment to Good Governance for the Americas AG/DEC. 31 (XXXIII-O/03), adopted by the General Assembly, Santiago (Chile), 10 June 2003 (4th plenary meeting) The Ministers of Foreign Affairs and Heads of Delegation of the member countries of the Organization of American States, assembled in Santiago, Chile, on the occasion of the thirty-third regular session of the oas General Assembly, Recalling that, 12 years ago, the oas adopted the Santiago Commitment to Democracy and the Renewal of the Inter-American System and resolution AG/RES. 1080 (XXI-O/91), “Representative Democracy”; Bearing in mind that the course charted by the Heads of State and Government at the Third Summit of the Americas entrusts us with tasks that require the ongoing strengthening of democracy; Reaffirming that, from that perspective, the adoption of the Inter-American Democratic Charter reinforced the commitment of the Americas to democracy, freedom, and development; Recognizing that democratic governance requires the responsible participation of all social actors in building the necessary consensus to strengthen our democracies; Recognizing that multilateralism and multilateral cooperation play an important role in supporting national efforts to promote good governance and the principles of democracy, and facilitate dialogue and cooperation in the political, economic, social, and cultural arena; Emphasizing that, during the last two decades, the peoples of the region have undergone the most comprehensive and intense democratization process in their history, even when some countries have been obliged to confront serious problems affecting good governance, aggravated by poverty and social exclusion in the context of the difficult economic circumstances in recent years; Recognizing the need to strengthen credibility and public trust in democratic institutions; Noting that the use of violence as a political tool fundamentally affects democratic governance and seriously jeopardizes democracy and its institutions; Bearing in mind that the existence of multidimensional threats, ­concerns, and other challenges to peace and security affects the enjoyment of the rights of all individuals and democratic stability;

362

chapter B

Recognizing that democracy is strengthened by the full respect for freedom of expression, access to information, and free dissemination of ideas, and that all sectors of society, including the media through the diverse information it provides to citizens, can contribute to an environment of tolerance for all opinions, promote a culture of peace, and strengthen democratic governance; and Taking note of the Consensus of Cuzco, recently signed by the Heads of  State and Government of the Rio Group, on strengthening democratic governance, DECLARE: The Inter-American Democratic Charter constitutes the principal hemispheric benchmark for the promotion and defense of shared democratic principles and values in the Americas at the start of the 21st century. Its effective implementation poses an ongoing challenge to both peoples and governments of the Americas. The need to define an agenda for good governance for the Hemisphere that addresses political, economic, and social challenges and fosters credibility and public trust in democratic institutions. In order for that agenda to promote trust and full citizen participation in the democratic, representative form of government, it is essential to strengthen inter-American cooperation and partnership. Strengthening political parties as intermediaries for citizen demands, in a system of representative democracy, is essential to the functioning of the democratic political system. The firm intention to promote full participation by citizens in the political system, in order to increase credibility and public trust in democratic institutions, including support for civil society organizations. Democratic governance calls for reinforced state modernization processes, incorporating new technologies, so as to raise levels of efficiency, probity, and transparency in public administration. Judicial reform and modernization leading to an independent, more expeditious, and more accessible justice system constitute a primary objective in the process of consolidating the rule of law. Corruption and impunity weaken our public and private institutions, distort our economies, and undermine the social values of our peoples. Responsibility for preventing and containing these problems lies with all branches of government in collaboration with society as a whole. Cooperation and reciprocal assistance against corruption, in accordance with applicable treaties and law, are fundamental factors in the promotion of democratic governance.

59 Declaration of Santiago on Democracy and Public Trust

363

In the framework of a global economy, democratic governance obliges us to focus on the responsible management of public affairs as an essential factor in the sustainable development of our countries with social, ethnic, and gender equity. The economic and social development of the developing countries of the region must be effectively addressed to support their democratic governance. Strengthening democratic governance calls for the elimination of poverty and social exclusion and the promotion of equitable economic growth, by means of sound public policies and practices that promote equal opportunity, education, health, and full employment. The states should strengthen their public policies and reinforce measures to address directly the grave problems of poverty, malnutrition, hunger, health care, and illiteracy, which hamper the consolidation of democracy. Economic growth with equity is essential to eradicating poverty, enhancing social justice, and creating equal opportunities for each and every citizen in our region. This assumes a world economic order that will promote such growth, trade liberalization for the region’s products, and an increasing flow of investments into the region. In that context, support for democratic governments from international financial organizations is essential and also assumes the need to consider innovative financing mechanisms to strengthen democratic governance. The consolidation of democracy in the region requires a culture based on profound democratic principles and values and on their daily observance. These values should be fostered through education for democracy. Respect for and appreciation of cultural diversity enhance social and economic vitality and contribute positively to the promotion of good governance, social cohesion, and human development. The inclusion of indigenous ­peoples in our societies and institutions is an essential factor in ongoing efforts to strengthen democracy and human rights. Gender equality and equity and the elimination of all forms of discrimination are key factors for attaining people-centered sustainable development. Promoting and strengthening cooperation activities and mutual assistance are vital to building sound democratic institutions that will facilitate transparency and good governance. The commitment to democracy, the strengthening of the rule of law, and access to effective justice, respect for human rights, the promotion of shared national basic values, and integral development are the foundations of progress, stability, and peace for the peoples of the Americas and are essential to democratic governance.

364 60

chapter B

Declaration of Nuevo León – Excerpts

Adopted by the Special Summit of the Americas, Monterrey (Mexico), 13 January 2004 Preamble We, the democratically elected Heads of State and Government of the Americas, who include fourteen new leaders who have taken office since the Third Summit of the Americas, in Quebec City, Canada, have gathered together for a Special Summit in the city of Monterrey, Nuevo León, Mexico. Our purpose is to advance implementation of measures to combat poverty, to promote social development, to achieve economic growth with equity, and to strengthen governance in our democracies. With a renewed and strengthened vision of cooperation, solidarity, and integration, we will confront the continuing and growing challenges in the Hemisphere. Guided by the need to work together to stimulate prosperity, promote social inclusion and a more equitable distribution of economic growth, eliminate hunger, raise living standards, generate new employment and investment opportunities, and promote decent work as well as confront the new threats to security, such as terrorism, organized crime, and illicit trafficking in arms, we reaffirm our commitment to the Inter-American Democratic Charter and we reiterate our firm intention to continue implementing the mandates of the Summits of the Americas, as well as the commitments made at the Millennium Summit, the International Conference on Financing for Development (the Monterrey Consensus) and the World Summit on Sustainable Development, held in Johannesburg. We affirm that the well-being of our people requires the achievement of three closely linked and interdependent objectives: economic growth with equity to reduce poverty, social development, and democratic governance. We therefore declare: […] Democratic Governance We express our support for the Declaration of Santiago on Democracy and Public Trust to define an agenda for good governance in the Hemisphere that enables us to address political, economic, and social challenges in order to foster credibility and public trust in democratic institutions.

60 Declaration of Nuevo León

365

We reiterate our commitment to the full application of the Inter-American Democratic Charter, which constitutes an element of regional identity, and, projected internationally, is a hemispheric contribution to the community of nations. We reaffirm our decision to coordinate immediate action whenever democracy is threatened in any of our countries. In addition, we will continue our efforts to strengthen mechanisms for the defense of democracy and to develop and promote a culture and education for democracy. We recognize the participation of many countries of the Hemisphere in the Community of Democracies and call upon the Third Ministerial Conference to continue supporting the strengthening of democratic institutions, particularly political parties. The strengthening of and respect for the rule of law, the defense of human rights and fundamental freedoms, economic progress, well-being and social justice, transparency and accountability in public affairs, the promotion of diverse forms of participation by our citizens, and the development of opportunities for all are fundamental to promote and consolidate representative democracy. Democratic governance is strengthened through dialogue among all sectors of society. We will continue to foster a culture of democracy and development based on pluralism and the acceptance of social and cultural diversity. We recognize that corruption and impunity weaken public and private institutions, erode social values, undermine the rule of law, and distort economies and the allocation of resources for development. Therefore, we pledge to intensify our efforts to combat corruption and other unethical practices in the public and/or private sectors, strengthening a culture of transparency and ensuring more efficient public management. We express our concern regarding corrupt, illegal, and fraudulent practices in the management of some national and transnational enterprises, that may have a negative impact on economies, in particular those of developing countries and on their producers and consumers. The Inter-American Democratic Charter states that the peoples of the Americas have the right to democracy and that their governments have the obligation to promote and defend it, and it establishes that transparency in government activities, probity, and responsibility in public management are key components of the exercise of democracy. We will therefore increase our cooperation within the framework of the Inter-American Convention against Corruption, particularly by strengthening its follow-up mechanism. We charge the upcoming meeting of the Conference of States Parties to the follow-up mechanism of the Convention with proposing specific measures to strengthen this mechanism. These recommendations will be evaluated at a meeting of the

366

chapter B

States Parties to the Convention, to be held in Managua, Nicaragua in mid2004. That meeting will also consider additional concrete measures to increase transparency and combat corruption. We instruct our foreign ministers to report on the progress achieved to the Fourth Summit of the Americas. We agree to hold consultations in the event that adherence to our shared transparency and anticorruption objectives, as articulated in the InterAmerican Convention against Corruption, is compromised to a serious degree in any of our countries. We undertake to promote transparency in political processes, in public financial management, and in government transactions, procurement processes, and contracts, in accordance with domestic legislation, in order to, inter alia, prevent abuse and maintain public confidence. In the framework of applicable national and international law, we commit to deny safe haven to corrupt officials, to those who corrupt them, and their assets; and to cooperate in their extradition as well as in the recovery and return of the proceeds of corruption to their legitimate owners. We also commit to enhance regional mechanisms for mutual legal assistance in criminal matters and their implementation. The United Nations Convention against Corruption is a valuable instrument to confront this scourge, and therefore we commit to consider signing and ­promoting its ratification. We further commit to increase transparency in the international organizations of which we are members by strengthening their accountability mechanisms. We recognize that political pluralism and sound political parties are essential elements of democracy. We underscore the importance of rules to ensure the transparency of party finances, to prevent corruption and the risk of undue influence, and to encourage a high level of electoral participation. Therefore, we will promote the conditions that enable political parties to thrive, autonomous of government control. We will encourage political training and leadership development, including for women, youth, indigenous people, members of ethnic groups, and marginalized segments of the population. We acknowledge the important work of the Inter-American Forum on Political Parties in enabling political parties to share best practices and strengthen themselves, as well as promoting reforms of political party systems. We agree that, through citizen participation, civil society organizations should contribute to the design, implementation, and evaluation of public policies adopted by different orders or levels of government. We recognize the role of civil society and its contribution to sound public administration and we reaffirm the importance of continuing to forge new partnerships that will

60 Declaration of Nuevo León

367

enable constructive ties to be built between governments, nongovernmental organizations, international organizations, and the diverse sectors of civil society to work in favor of development and democracy. We encourage the participation of civil society in the Summits of the Americas process and we undertake to institutionalize meetings with civil society and with the academic and private sectors. We will encourage the modernization of the State as an important element for strengthening democratic and good governance, combining effectiveness and efficiency with greater access to services, transparency, and responsibility in management and the consolidation and professionalization of the civil ­service. We undertake to promote the use of new information and communication technologies in public administration and to adopt strategies for the development of electronic government. Access to information held by the State, subject to constitutional and legal norms, including those on privacy and confidentiality, is an indispensable condition for citizen participation and promotes effective respect for human rights. We are committed to providing the legal and regulatory framework and the structures and conditions required to guarantee the right of access to information to our citizens. We take note with satisfaction that governments in the Hemisphere are implementing the Monterrey Consensus by exploring innovative ways to mobilize financing for private and public investment and to strengthen debt management, by considering financial instruments, such as growth-indexed bonds and others, to promote macroeconomic stability and reduce financial vulnerability. The implementation of such measures would be aimed at accelerating growth, reducing poverty, and strengthening democratic governance. We also note the efforts of governments in the region to promote discussion in this area. We emphasize the role of the existing multilateral agencies in providing humanitarian assistance. We also take note of discussions and initiatives oriented on improving the effectiveness of providing humanitarian assistance and alleviating poverty, such as the proposal to create a voluntary International Humanitarian Fund. Social justice and the reduction of poverty contribute to the stability, democracy, and security of our States and the region. We reiterate that among the principal causes of instability in the region are poverty, inequality, and social exclusion, which we must confront comprehensively and urgently. The progress made in economic and social development and in attaining a higher standard of equity through good governance will contribute to the advancement of stability in the Hemisphere and deepen the human dimension of security.

368

chapter B

We reiterate our commitment to the objectives and purposes contained in the Declaration on Security in the Americas, approved at the Special Conference on Security, held in Mexico City in October 2003, based on, inter alia, the multidimensional concept of security as well as the principle that the basis and purpose of security is the protection of human beings. This is our first meeting since the tragic events of September 11, 2001. We  ­reiterate that terrorism, as well as the proliferation of weapons of mass destruction, constitute grave threats to international security, to the institutions and the democratic values of States, and to the well-being of our peoples. We resolve to intensify our efforts and strengthen cooperation in confronting these threats. We will take all necessary steps to prevent and counter terrorism and its financing in full compliance with our obligations under international law, including international human rights, refugee, and humanitarian law. Simi­ larly, we commit to fight all forms of transnational crime, including illicit trafficking in drugs, arms, and persons, particularly when they generate funds used in ­support of terrorist organizations. We also commit to adhere to global antimoney laundering and anti-terrorist financing standards. We call upon all countries that have not yet done so to ratify the ­Inter-American Convention against Terrorism, the twelve United Nations conventions and protocols on terrorism, as well as other related instruments. We further call upon all countries to urgently consider signing and ratifying the Inter-American Convention on Mutual Assistance in Criminal Matters and to participate actively in the Network on Mutual Legal Assistance in Criminal Matters. We call upon the Organization of American States, the Inter-American Development Bank, the Pan American Health Organization, the United Nations Economic Commission for Latin America and the Caribbean, the World Bank, the Inter-American Institute for Cooperation on Agriculture, the Andean Development Corporation, the Central American Bank for Econo­ mic Integration, and the Caribbean Development Bank to strengthen their coordination, and to continue deepening their support, through their respective activities and programs, and committing appropriate resources to implement and conduct follow-up on the Plans of Action of the Summits of the Americas, and this Declaration, and to assist in preparations for the Fourth Summit of the Americas in 2005. We thank the Organization of American States and its General Secretariat, in particular the Secretariat of the Summits of the Americas Process, and the Joint Summit Working Group for their work in Summits follow-up and in the preparatory work for this Special Summit.

60 Declaration of Nuevo León

369

We express our appreciation to the people and Government of Mexico for hosting this Special Summit, and to the Government of Argentina for confirming its offer to host the Fourth Summit of the Americas in 2005. We, the Heads of State and Government of the Americas, agree that this document shall be known as the “Declaration of Nuevo León” and we hereby approve it on this thirteenth day of January, in the year two thousand and four.

370

chapter B

61 Declaration of Quito on Social Development and Democracy, and the Impact of Corruption – Excerpts AG/DEC. 36 (XXXIV-O/04), adopted by the General Assembly, Quito (Ecuador), 8 June 2004 (4th plenary session) The Ministers of Foreign Affairs and Heads of Delegation of the member states of the Organization of American States, assembled in Quito, Ecuador, on the occasion of the thirty-fourth regular session of the General Assembly, Reiterating that social development and democracy are essential p ­ urposes of the oas and of its member states; Recalling that the Inter-American Democratic Charter declares that the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it and, at the same time, it establishes that transparency in government activities, probity, and responsible public administration on the part of governments are essential components of the exercise of democracy; Bearing in mind that, since its inception, the Summits of the Americas process has been concerned with the fight against corruption and that this topic has warranted the attention of their Heads of State and Government; Taking into account the Declaration of Santiago on Democracy and Public Trust: A New Commitment to Good Governance for the Americas [AG/DEC. 31 (XXXIII-O/03)] and resolution AG/RES. 1960 (XXXIII-O/03), “Program for Democratic Governance in the Americas”; […] Convinced that multilateralism and cooperation among sovereign states play an important role in supporting national efforts to consolidate democracy, promote social development, and fight corruption; Recognizing that external debt relief may be a critical factor in freeing resources that can be directed to activities that promote social investment of states and strengthen democracy; […] DECLARE: 1. That development, democracy, and the fight against corruption are closely interrelated topics and, as such, should be addressed in a balanced and integrated way by our countries. 2. That the world phenomenon of corruption constitutes a serious obstacle to the social development of their peoples and has warranted the attention of the Heads of State and Government in the Summits of the Americas process. In  that regard, they reaffirm their commitment to fight corruption, which

61 Declaration of Quito on Social Development and Democracy

371

j­eopardizes democracy and democratic governance, weakens institutions, undermines economic and social development and the fight against poverty, erodes public trust, and disrupts political stability. […] 8. That political pluralism and sound political parties are essential elements of democracy. They underscore the importance of rules to ensure the transparency of party finances, to prevent corruption and the risk of undue influence, and to encourage a high level of electoral participation. […] 15. That the media and the various actors in civil society must play a fundamental role in the prevention of and fight against corruption, in accordance with domestic law and applicable international norms. Responsible action on their part contributes to the culture of transparency, good governance, and democratic values. 16. That access to public information supports government transparency and contributes to preventing impunity by permitting the detection of acts of corruption. They pledge to promote additional measures to enhance government transparency. 17. That the strengthening of and respect for the rule of law, the defense of human rights and fundamental freedoms, economic progress, well-being and social justice, transparency and accountability in public affairs, the promotion of diverse forms of citizen participation, and the development of opportunities for all are fundamental to promoting and consolidating representative democracy. […]

372 62

chapter B

Promotion and Strengthening of Democracy

AG/RES. 2044 (XXXIV-O/04), adopted by the General Assembly, Quito (Ecuador), 8 June 2004 (4th plenary session) THE GENERAL ASSEMBLY, Having seen the reports of the Permanent Council on the implementation of resolutions AG/RES. 1957 (XXXIII-O/03) and AG/RES. 1960 (XXXIII-O/03) (AG/doc.4335/04 and AG/doc.4336/04); Mindful that the Charter of the Organization of American States establishes in its preamble “that representative democracy is an indispensable condition for the stability, peace and development of the region” and that it establishes that one of the essential purposes of the Organization is “to promote and consolidate representative democracy, with due respect for the principle of nonintervention”; Considering that the Heads of State and Government, meeting at the Special Summit of the Americas, issued the Declaration of Nuevo León, in which they reaffirmed the hemispheric commitment to democracy; Recalling that, in the Declaration of Nuevo León, they reiterated their commitment to the full application of the Inter-American Democratic Charter, which is an element of the region’s identity and, at the international level, a contribution by the Hemisphere to the community of nations; Bearing in mind that the Inter-American Democratic Charter reaffirmed the commitment of the governments of the Americas to the promotion and consolidation of democracy and that democracy is essential for the social, political, and economic development of the Americas; Recalling also that the Declaration on Security in the Americas reaffirmed the commitment of states to full observance of the Inter-American Democratic Charter; to its values, principles, and mechanisms; and to strengthening the inter-American system for the protection of human rights, and recommended that action be taken to promote democratic culture in keeping with the provisions of the Inter-American Democratic Charter; Aware that the Declaration of Mexico, signed by the Ministers of Educa­ tion of the Hemisphere, recognizes the importance of raising cultural awareness and promoting democratic values in present and future generations, especially in education as a key means of strengthening democratic institutions; and Bearing in mind the Declaration of Santiago on Democracy and Public Trust: A New Commitment to Good Governance for the Americas [AG/DEC. 31 (XXXIII-O/03)],

62 Promotion and Strengthening of Democracy

373

RESOLVES: 1. To reaffirm the commitment of the member states to the full exercise and application in the Hemisphere of the democratic principles and values set forth in the Charter of the Organization of American States, the Inter-American Democratic Charter, and other relevant international instruments. 2. To support member states in their continued collective efforts to strengthen democratic governance, fight corruption, enhance the rule of law, bring about the full exercise of human rights, and fight poverty, inequity, and social exclusion. 3. To invite civil society organizations to continue fostering democratic governance in the Hemisphere by promoting respect for the rule of law and for the values and principles enshrined in the Inter-American Democratic Charter. 4. To support the initiative by the Ministers of Education to pursue the principles enshrined in the Inter-American Democratic Charter through educational programs, in keeping with the system of each country. 5. To recommend to member states that they promote and publicize the InterAmerican Democratic Charter, in accordance with the mandate that established “Follow-up and development of the Inter-American Democratic Charter” as a permanent General Assembly agenda item. 6. To instruct the Permanent Council, in the context of the commitments and mandates arising from the oas Charter, the Summits of the Americas process, and the Inter-American Democratic Charter, to: a. Continue to examine the principal challenges to democratic governance, especially those related to strengthening democratic institutions and promoting economic and social development, and to continue its work on defining the Program for Democratic Governance in the Americas; b. Continue to hold a meeting in the first quarter of each year to review activities undertaken by the Organization in the preceding calendar year to promote and strengthen democracy; c. Hold a meeting in October 2004 on strengthening political parties as key players in a democracy, with the support of the General Secretariat, through the Unit for the Promotion of Democracy (upd), and with the presence of representatives of the Inter-American Forum on Political Parties (fiapp); and d. Hold a meeting, in the first quarter of 2005, on the constitutional ­subordination of all state institutions to legally constituted civilian authority and on respect for the rule of law on the part of all institutions and sectors of society, with the support of the General Secretariat, through the upd and with the presence of representatives from a­ cademic institutions, political parties, and civil society.

374

chapter B

7. To recognize the work of the upd as a focal point of the inter-American agenda in the area of democracy and, in particular, in the fulfillment of the mandates of the Summits process, support for dissemination of the InterAmerican Democratic Charter, and implementation of General Assembly mandates; and, in this regard, to request that the General Secretariat, through the upd: a. Coordinate the activities and programs of the various units and offices of the General Secretariat relating to the promotion of democracy, in accordance with the Inter-American Democratic Charter, so as to be more effective in fulfilling the mandates on the inter-American agenda; b. Promote measures to provide governments and civil society with a better understanding of the Inter-American Democratic Charter and the inter-American agenda for the promotion and defense of democracy; c. Develop programs, with competent national authorities in member states who deem it appropriate, to strengthen the system of democratic institutions and the principles, values, and practices underpinning it, focusing on the essential components and vital elements of a representative democracy; d. Continue to prepare the annual inventory of activities related to the promotion of democracy, for consideration by the Permanent Council, and include specific suggestions for improving the impact of said activities; e. Continue its information-sharing with the Community of Democracies process, especially to promote awareness of the Inter-American Democratic Charter as a hemispheric contribution to that Community; f. Strengthen the capacity of the fiapp as a basic mechanism for coordinating efforts in this area, and promote the necessary measures to carry out the Inter-American Agenda for the Modernization and Reform of Party Systems and Political Parties, and to lend technical assistance to member states that so request in the formulation and implementation of political reforms to strengthen party systems, increase the transparency of political funding, and enhance the capacity of parties to exercise their functions both within the government and as part of the opposition; g. Continue its efforts to promote political dialogue as a conflict ­prevention and resolution mechanism and as an instrument for strengthening democratic governance. In that connection, the holding in Lima, Peru, in March 2004, of the Regional Forum “Latin American ­Experiences with  Dialogue and Consensus-Building, and the Challenge of Their ­Institutionalization” is a valuable example of cooperation between a member state and the General Secretariat in this area;

62 Promotion and Strengthening of Democracy

375

h. Continue to provide support to the efforts of legislative bodies in member states to promote modernization and strengthening of legislatures, especially organization of the First Inter-American Forum on ­Legislative Modernization, as well as interparliamentary cooperation on key items of the inter-American agenda, with a view, in particular, to generating initiatives to strengthen the capacity of parliaments to fight corruption and to combat poverty, inequality, and social exclusion; i. Generate initiatives to examine and bring about a better understanding of the role of the media in the promotion and defense of democracy; j. Take into account in its activities the contribution that information and communications technology can make in developing more just, open, and democratic societies; k. Present semiannual progress reports on the execution of its work plan; and l. Promote examination of the relationship between democratic governance and the processes of decentralization and strengthening the intermediate and local levels, by way of a seminar coordinated with the authorities of the High-Level Inter-American Network on Decentralization, Local Government, and Citizen Participation (riad) and with the participation of other international agencies. 8. To recognize the joint endeavors of the Unit for the Promotion of Democracy and the Unit for Social Development and Education in strengthening democracy through education as well as in the effort to link the democracy agenda with the promotion of social development. 9. To request that General Secretariat, through both units, and others, as appropriate: a. Continue to develop activities and programs to help member states carry out the mandates of the Summits of the Americas process, especially on the basis of the contents of the Declaration of Nuevo León as they pertain to democratic governance and social development; b. Continue to support Permanent Council efforts to define the Program for Democratic Governance in the Americas and to identify the appropriate actions to improve democratic governance; c. Promote activities to link the democracy agenda with the promotion of development; and to call on other institutions with responsibilities in the area of development to study how to move forward, together with the Inter-American Council for Integral Development (cidi); d. Present to the Permanent Council a basic document for preparation of an inter-American program for education in democratic values for peace and human rights, bearing in mind the recommendations of the

376

chapter B

special meeting of the Permanent Council, held on April 12 and 13, 2004, on the promotion of democratic culture through education; and e. Continue to develop training programs to promote the principles, values, and practices of a democratic culture, on the basis of Articles 26 and 27 of the Inter-American Democratic Charter. 10. To urge all bodies of the inter-American system, especially the InterAmerican Commission of Women, the Inter-American Commission on Human Rights, and the General Secretariat, through the upd and the Unit for Social Development and Education, to continue working to remove existing obstacles to full participation by women in democratic processes, taking into account Article 28 of the Inter-American Democratic Charter and the recommendations of Permanent Council meetings on this matter. 11. To urge member states and permanent observers to continue to contribute to the Special Fund for Strengthening Democracy, the Fund for Peace: Peaceful Settlement of Territorial Disputes, and the Permanent Specific Fund to Finance Activities Related to oas Electoral Observation Missions. 12. To ensure that the actions and programs proposed in this resolution will be carried out in accordance with the resources allocated in the program-budget of the Organization and other resources. 13. To instruct the Permanent Council to report to the General Assembly at its thirty-fifth regular session on the implementation of this resolution.

63 Declaration of Florida: The Benefits of Democracy

63

377

Declaration of Florida: The Benefits of Democracy

AG/DEC. 41 (XXXV-O/05), adopted by the General Assembly, 7 June 2005, (4th plenary session) The Ministers of Foreign Affairs and Heads of Delegation of the member states of the Organization of American States (oas), attending the thirty-fifth regular session of the General Assembly of the oas, at Fort Lauderdale, Florida, United States of America; Reaffirming the commitment of the member states to uphold the principles, duties, and rights of the oas Charter, in particular those set out in its Articles 1, 3, 10, 11, 12, and 33, and to act in accordance therewith in their inter-American relations; Bearing in mind that the Inter-American Democratic Charter establishes that the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it, and that democracy is essential for the social, political, and economic development of the peoples of the Americas; Determined to promote and defend democracy on the basis of the commitments arising from the oas Charter and the Inter-American Democratic Charter; Recognizing that the Inter-American Democratic Charter serves as a positive example to all those who aspire to democracy; Considering that adherence to the Inter-American Democratic Charter, as the standard that enables observance and defense of democratic values and principles, strengthens and is a key element for member states’ full participation in the inter-American system, pursuant to the principles of the oas Charter; Committed to advancing the prosperity, democratic values, democratic institutions, and security of our Hemisphere; Determined to adopt and implement those actions required to g­ enerate productive employment, reduce poverty, and especially eradicate extreme poverty, while taking into account the different economic realities and conditions of the countries of the Hemisphere, and that the elimination of extreme poverty is essential to the promotion and consolidation of democracy and constitutes a common and shared responsibility of the American States; Recognizing that the stated goals require the creation of decent, productive jobs, and that liberalized trade without distortive effects and an effective multilateral financial system will contribute to these goals, thereby reinforcing democratic stability in the region;

378

chapter B

Additionally recognizing the legitimate aspirations of all the peoples of the Americas to live in democracy and enjoy the rights and benefits enumerated in the oas Charter and the Inter-American Democratic Charter; Recognizing also that all our citizens can freely determine their political status and pursue their economic, social, and cultural development, and that every member state has the duty to respect this; Aware that democracy and social and economic development are interdependent and are mutually reinforcing; Considering that our citizens embrace democracy as the form of government that should deliver a better quality of life; Aware that each of the sectors of society can contribute to attaining the benefits of democracy through equitable economic growth that fosters social inclusion and social mobility, integral development, and income distribution; Recognizing also the importance of participation by civil society organizations; Aware also that the peoples of the Hemisphere are entitled to freedom, fundamental human rights, the respect for dignity and worth of the human person, equal rights of men and women, and the promotion of social progress and better standards of life; Reaffirming the commitment of eliminating all forms of discrimination and intolerance, particularly those based on gender, ethnic origin, race, religion, and disability, as a fundamental element in strengthening democracy; Convinced that countries must be governed democratically, with full respect for human rights and fundamental freedoms, the rule of law, the s­ eparation of powers and independence of the judiciary, and democratic ­institutions – and that the governments of the Americas have an obligation under the Charter of the oas and the Inter-American Democratic Charter to promote and defend democracy and must be answerable to their peoples; Emphasizing that for democracy to prosper governments must be responsive to the legitimate aspirations of their people, and must work to provide their people with the tools and opportunities to improve their lives; Convinced that in order for national development policies to achieve these objectives, both developed and developing nations alike must fulfill their international commitments; Convinced also that multilateralism and cooperation among sovereign states play an important role in supporting national efforts to consolidate democracy, promote social development, and fight corruption; Reaffirming that, as the premier multilateral forum of the Hemisphere, the oas has a unique role in strengthening democratic institutions and

63 Declaration of Florida: The Benefits of Democracy

379

c­ onsolidating representative democracy, with due respect for the principle of nonintervention; Recognizing that in the Declaration on Security in the Americas we reaffirmed that representative democracy is an indispensable condition for the stability, peace, and development of the states of the Hemisphere and that our cooperation in addressing traditional threats and new threats, concerns, and other challenges to security is also based on shared values and common approaches, including full respect for democracy, international law, human rights, and fundamental freedoms; Cognizant of the hemispheric and global efforts to address the threat posed by terrorism, drug trafficking, and other international criminal activities that threaten our democratic way of life and our freedom to live and prosper in peace; and Cognizant also of the commitment made to active solidarity in the fight against poverty, illiteracy, low levels of human development, social and political instability, environmental degradation, and the spread of lethal infectious diseases; Recalling that the commitments made in the Millennium Declaration have become hemispherically and globally accepted benchmarks of broader progress, embraced by donors, developing countries, civil society and major development institutions alike; Recognizing that the Declaration of Margarita, on poverty, equity, and social inclusion, affirms our determination and commitment to urgently combat the serious problems of poverty, social exclusion, and inequity, which affect, in varying degrees, the countries of the Hemisphere; and to face the causes that generate them and their consequences and create favorable conditions for socioeconomic development with equity to promote more just societies; Recognizing also that in the cidi Strategic Plan the member states establish a partnership for development that entails the implementation of cooperation programs based on partnerships that support measures to combat poverty and include civil society and the private sector towards this end; Recognizing also the need to work together to better deliver the benefits of democracy to the citizens of the Hemisphere, and to that end, DECLARE THAT: 1. The Organization of American States should continue building on the ideals and commitments of the oas Charter and the Inter-American Democratic Charter, working together to advance shared political and economic values to make this a Hemisphere of democratic, stable, and prosperous nations;

380

chapter B

2. The Secretary General shall be entrusted with presenting to the Permanent Council, in the near future, a report for its consideration and analysis that describes the manner in which the Inter-American Democratic Charter has been implemented since its entry into force in 2001. 3. The Secretary General shall be instructed, after engaging in consultations with the Permanent Council, and taking into account the purposes and principles of the oas Charter, in particular that of promoting and consolidating representative democracy, to devise proposals for timely, effective, balanced, gradual initiatives for cooperation, as appropriate, in addressing situations that might affect the workings of the political process of democratic institutions or the legitimate exercise of power, in keeping with the provisions of Charter IV of the Inter-American Democratic Charter, with respect for the principle of nonintervention and the right of self-determination of peoples, and to present those proposals to the Permanent Council. 4. It is reaffirmed that the Secretary General may bring to the attention of the Permanent Council, in the exercise of the authority contained in the oas Charter and pursuant to the Inter-American Democratic Charter, those situations likely to lead to action under the said Charters. 5. The Permanent Council is instructed, for the purpose of facilitating regional cooperation to strengthen representative democracy and good governance, to consider, in cooperation with Governments, in an ongoing manner, initiatives to support these areas, in accordance with the provisions of the Inter-American Democratic Charter and with the circumstances surrounding democratic processes in the region, taking into consideration the Secretary General’s report and proposals, the efforts of other regional and subregional organizations, and the contributions of civil society in the context of Article 26 of the InterAmerican Democratic Charter and resolution AG/RES. 1991 (XXXIV-O/04), “Increasing and Strengthening Civil Society Participation in oas Activities.” 6. Encouragement is given to the Working Group to Negotiate the Social Charter of the Americas and a Plan of Action, so that its work may serve effectively to strengthen existing oas instruments on democracy, integral development, and the fight against poverty. 7. The relevant oas entities will facilitate the creation of cooperative hemispheric networks, taking into account the Declaration on Security in the Americas, to combat transnational organized crime, criminal gangs, drug trafficking, corruption, trafficking in persons, and other criminal activities that threaten citizens and democratic societies. 8. The Inter-American Council for Integral Development (cidi), in cooperation with the relevant cooperative hemispheric networks, will formulate

63 Declaration of Florida: The Benefits of Democracy

381

s­trategies to combat poverty, illiteracy, low levels of human development, social problems, and environmental degradation. 9. The Inter-American Council for Integral Development (cidi) will convoke a Special Meeting of that body in the second half of 2005 to adopt a Strategic Plan for Partnership for Development 2006–2009, as envisaged in Article 95 of the oas Charter, taking into account the interdependent relationship of democracy and social and economic development. 10. During the second half of 2005, pursuant to the commitment acquired under the Declaration of Margarita, a joint meeting of the Permanent Council and cepcidi shall be convened to contribute to the monitoring, evaluation, and oversight of the eight development goals set in the Declaration of the United Nations Millennium Summit for 2015.

382

chapter B

64 Declaration of Mar del Plata: Fourth Summit of the Americas – Excerpts Adopted by the Fourth Summit of the Americas (“Creating Jobs to Fight Poverty and Strengthen Democratic Governance”), Mar de Plata (Argentinia), 5 November 2005 1. Convinced of the necessity to deepen democracy and consolidate freedom in the Americas, in accordance with the principles contained in the Charter of the Organization of American States and the Inter-American Democratic Charter and their full application as the foundation of the hemispheric community, we, the Heads of State and Government of the democratic countries of the Americas, gathered in the city of Mar del Plata, Argentina, on the occasion of our Fourth Summit, reaffirm our commitment to fight poverty, inequality, hunger, and social exclusion in order to raise the standard of living of our peoples and strengthen democratic governance in the Americas. We assign the right to work, as articulated in human rights instruments, a central place on the hemispheric agenda, recognizing the essential role of the creation of decent work to achieve these objectives. 2. Taking into account the International Labour Organization (ilo) Declaration on Fundamental Principles and Rights at Work (1998), and the commitment to promoting, strengthening, and defending democracy in the oas Charter and the Inter-American Democratic Charter, we will promote social well-being, an equitable distribution of the benefits of economic growth, an increase in hemispheric standards of living, the elimination of hunger and the attainment of food security, the creation of new employment opportunities, and the promotion of entrepreneurship. 3. We reaffirm our support for the mandates and commitments undertaken at the Summits of the Americas; the World Summit for Social Development (Copenhagen, 1995); the Millennium Summit of the United Nations (New York, 2000); the International Conference on Financing for Development (Monterrey, 2002); the World Summit on Sustainable Development (Johannesburg, 2002); and the High-level Plenary Meeting of the Sixtieth Session of the United Nations General Assembly (New York, 2005) (Reservation by the Delegation of Venezuela), as a fundamental condition for the sustainable development of our countries. […] Strengthening Democratic Governance 57. We reiterate our commitment to the oas Charter and the Inter-American Democratic Charter and we reaffirm our resolve to strengthen their full and effective implementation.

64 Declaration of Mar del Plata

383

58. We are convinced that representative democracy is an indispensable condition for the stability, peace, and development of the region (Reservation by Venezuela). We recognize that for democracy to prosper, governments must be responsive to the legitimate aspirations of their people and work to provide their people with the tools and opportunities to improve their lives. 59. In this sense, we endorse the commitments undertaken in the Declaration of Florida adopted at the thirty-fifth regular session of oas General Assembly held in June 2005. Likewise, we take note of the importance of what was agreed by the participants of the Community of Democracies at their Third Ministerial Meeting, held in Santiago, in April 2005. 60. We reaffirm that the participatory nature of democracy in our countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere. 61. Our efforts to generate decent work will contribute to promoting equity, social mobility, a better quality of life, and social inclusion for our citizens as well as to achieving social justice. 62. Increased participation by citizens, communities, and civil society will contribute to ensuring that the benefits of democracy are shared by society as a whole. 63. We recognize that the universal promotion and protection of human rights, including civil, political, economic, social, and cultural rights on the basis of the principles of universality, indivisibility, and interdependence, as well as respect for international law, including international humanitarian law, international human rights law, and international refugee law are essential to the functioning of democratic societies. Accordingly, we reaffirm the need to continue the process of strengthening and enhancing the effectiveness of the inter-American human rights system, in particular, the functioning of and access to the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. 64. We reaffirm that democratic governance based on respect for the rule of law and which is stable, transparent, effective, inclusive, and accountable, ­contributes to creating the enabling environment to attract investment, build economic prosperity, foster the creation of decent work, and achieve social justice. 65. In this sense, we recognize the work of the Meetings of Ministers and of High Authorities of the Inter-American High Level Network on Decentrali­ zation, Local Government, and Participation by Citizens, in particular the III riad, whose central theme was the role of local and regional governments, citizen participation and regional development in combating poverty, the generation of work and income, and the strengthening of democratic governance.

384

chapter B

66. Accountability is a key instrument to achieve transparency and efficiency in the use of resources administered by our governments. Fighting corruption is a key aspect of strengthening democracy and economic growth. For this ­reason, we call upon states to implement the Inter-American Convention against Corruption and participate fully in the Follow-up Mechanism for the Implementation of the Inter-American Convention against Corruption. We stress the importance of the oversight role of legislatures, as appropriate, in the fight against corruption and the importance of promoting inter-parliamentary exchanges to encourage the development of national and international strategies to fight against corruption. 67. We will promote economic prosperity by ensuring that the community of democratic states remains committed to peace and to dealing with threats, concerns, and other challenges to security. We reiterate our commitment to the objectives and purposes contained in the Declaration on Security in the Americas based on a multidimensional concept of security, and will continue to strengthen cooperation among our states. 68. We state that terrorism affects the normal functioning of our societies and has a negative impact on our economies and labor markets and particularly the generation of jobs. To sustain an environment to promote economic prosperity and the well-being of our people, we will take all necessary steps to prevent and counter terrorism and its financing in full compliance with our obligations under international law, including international humanitarian law, international human rights law, and international refugee law. 69. We will strengthen the timely exchanges of information and the broadest possible mutual legal assistance in order to prevent, combat, and eliminate terrorism, prevent the international movement of terrorists and ensure their prosecution, and, as appropriate, their extradition in accordance with domestic laws and relevant treaties and conventions. We will cooperate to avoid that any individual who participates in the financing, planning, preparation and commission of terrorist acts finds safe haven in our countries. 70. We emphasize our concern for the criminal gang problem and its related aspects, as well as its effect on the economic and social environments that challenge the progress made by our societies in the stability, democratization, and sustainable development process: a situation that requires additional urgent action to promote the prevention of criminal acts, prosecute those who commit them, rehabilitate and reinsert them, and create opportunities to facilitate access by youth to decent work. 71. We offer our encouragement to the oas in drafting the Social Charter of the Americas and its Plan of Action, whose principles and objectives will be directed towards the achievement by member states of societies that offer all

64 Declaration of Mar del Plata

385

of our citizens more opportunities to benefit from sustainable development with equity and social inclusion. 72. National efforts to generate decent jobs and good employment must be supported by international cooperation and solidarity. In this context, we will strengthen hemispheric cooperation mechanisms among our countries within the oas framework and with other multilateral organizations and financial institutions, to ensure an effective use of instruments and resources needed to promote sustainable growth and development. In this regard, we take note with interest of the international efforts, contributions and discussions, such as the Action Against Hunger and Poverty, aimed at identifying innovative and additional sources of financing for development on a public, private, domestic or external basis, according to each country’s national development strategies, to increase and supplement traditional sources of financing in support of the achievement of internationally agreed development goals, including the Millennium Development Goals (mdg’s) and reflecting the global partnership of the Monterrey Consensus. 73. Taking into account the results of this Summit and the Fourteenth iacml, we request that the ilo address, at its Sixteenth Americas Regional Meeting in 2006, the central topic of the Fourteenth iacml, “People and their Work at the Heart of Globalization,” with special emphasis on decent work, and consider government and tripartite actions to implement the Declaration and Plan of Action of Mar del Plata. 74. We recognize the pivotal role that the oas plays in the implementation and follow-up of Summit mandates, and we instruct the General Secretariat to continue to act as technical secretariat; provide support for meetings of the Summit Implementation Review Group (sirg), ministerial meetings, and specialized conferences; coordinate the participation of civil society; and ensure the dissemination of information on the Summits Process and the commitments adopted by the countries. 75. We instruct the members of the Joint Summit Working Group, comprised of the oas, idb, Economic Commission for Latin América and the Caribbean (eclac), paho, Inter- American Institute for Cooperation on Agriculture (iica), Central American Bank for Economic Integration (cabei), the World Bank, ilo, International Organization for Migration (oim), Institute for Connectivity in the Americas (ica), Caribbean Development Bank (cdb), and the Andean Development Corporation (caf), under the coordination of the oas, to continue, through their respective activities and programs, to support the follow-up and implementation of the Declarations and Plans of Action of the Summits of the Americas, and of the Declaration and Plan of Action of Mar del Plata, as well as to assist in the preparations for future summits.

386

chapter B

76. With this Declaration and the attached Plan of Action, we Heads of State and Government of the Hemisphere reaffirm the central role we assign to the creation of decent work, in order to meet our commitments to fight poverty and strengthen democratic governance. We recognize once again the value of work as an activity that dignifies and structures the lives of our peoples, as an effective instrument for social interaction, and as a means of participation in the achievements of society: the ­primary objective of our governments’ actions for the Americas.

65 Declaration of Medellin: Youth and Democratic Values

65

387

Declaration of Medellin: Youth and Democratic Values – Excerpts

AG/DEC. 57 (XXXVIII-O/08), adopted by the General Assembly, Medellín (Colombia), 3  June 2008 (4th ­plenary session) THE MINISTERS OF FOREIGN AFFAIRS AND HEADS OF DELEGATION OF THE MEMBER STATES OF THE ORGANIZATION OF AMERICAN STATES (oas), meeting in Medellín, Colombia, on the occasion of the thirty-eighth regular session of the General Assembly, Reaffirming the commitment of the member states to promote and strengthen in the youth of the Hemisphere the values, principles, and practices of a democratic life, including liberty and social justice, progress, respect for human rights in their universality, indivisibility, and interdependence, and the rule of law, pursuant to the Charter of the oas and the Inter-American Democratic Charter; Recognizing the right of young people to participate actively and fully in the political, economic, and social spheres of their countries; and reaffirming our commitment to combating poverty, hunger, and social exclusion and to promoting social cohesion, to improve the living conditions of our peoples; Bearing in mind that the Inter-American Democratic Charter emphasizes the importance and proposes the promotion of fundamental democratic values, principles, and practices, in order to foster a democratic culture among new generations; Considering the central role of the oas in the promotion of a democratic culture in the Hemisphere consistent with the principles, practices, and values of the oas Charter and the Inter-American Democratic Charter, paying special attention to the development of programs for the education of children and youth as a means of promoting and guaranteeing the permanence of democratic values, principles, and practices, including liberty and social justice; Bearing in mind the agreements, mandates, and commitments set forth in the resolutions and declarations adopted by the oas General Assembly, and the declarations, commitments, and plans of action adopted by the Summits of the Americas, related to the issue of youth and democratic values; Recalling: That in the Plan of Action of the Second Summit of the Americas, held in Santiago, Chile, in April 1998, the Heads of State and Government committed to develop “democratic culture at all levels, in order to teach individuals ethical values, a spirit of cooperation and integrity. To that end, the participation of teachers, families, students and outreach workers will be stepped up in their work related to conceptualizing and implementing the plans for shaping ­citizens imbued with democratic values”;

388

chapter B

That in the Plan of Action of the Third Summit of the Americas, held in Quebec City, Canada, in April 2001, the Heads of State and Government committed to supporting and promoting lifelong learning by offering varied curricula based on skills, knowledge, and civic and democratic values; That in the Declaration of Nuevo León of the Special Summit of the Americas, held in Monterrey, Mexico, in January 2004, the Heads of State and Government reaffirmed the hemispheric commitment to democracy and reiterated the importance for democratic governance of political training and leadership development of young people; and […] Taking into consideration: […] That the promotion of democratic values, including freedom and social justice, as well as the development of knowledge, capacities, and relevant abilities in the young people of the Americas, are essential for their effective integration into the political, economic, and social spheres; The importance of designing public policy with the joint participation of families and society in order to provide young people with opportunities to develop fully into productive adults, including the design of programs for training, initial employment, and participation in the economic, social, and cultural development process; and The potential of youth as people imbued with principles and values, and with skills and abilities, capable of shaping more free, just, and democratic societies; Recognizing: The importance of youth participation in political activities and public life, including the electoral process, as a key aspect for the promotion and exercise of a democratic culture; The importance that youth be able to select their training and education on the basis of the exercise of their fundamental freedoms; That the full exercise of democracy, respect for and the protection and promotion of human rights, and recognition that the individual is at the center of integral development, are essential for the improvement of social conditions and the eradication of poverty; That democracy and social and economic development are interdependent and mutually reinforcing; […] That free and independent media are fundamental for democracy and for the promotion of pluralism, tolerance, and freedom of thought and ­expression, and to facilitate dialogue and debate, free and open to youth and all other segments of society, without discrimination of any kind;

65 Declaration of Medellin: Youth and Democratic Values

389

That the mass media have an important role to play in educating young people in a spirit of peace, tolerance, justice, freedom, and mutual respect, so as to promote human rights, and the right of young people to access to information from independent, plural, and diverse sources; and That access to information and the exchange and creation of knowledge are important elements of a free, democratic, and pluralistic society, and that the use of the Internet and the World Wide Web, without political censorship, can contribute to the development of a democratic future, the exercise of the right to freedom of expression, and the free flow of information and ideas for the youth and for all the peoples of the Americas, a basic premise of knowledgebased societies; Recalling that the Inter-American Program on Education for Democratic Values and Practices was adopted at the Fourth Meeting of Ministers of Education within the framework of cidi (Inter-American Council for Integral Development), held in Scarborough, Trinidad and Tobago, from August 10 to 12, 2005, in order to promote a democratic culture through education, both formal and non-formal; Bearing in mind: The work carried out by the Inter-American Children’s Institute, particularly the promotion of democratic principles, values, and practices; […] That 2008 marks the 16th anniversary of the Ibero-American Youth Organi­ zation, the 23rd anniversary of the International Youth Year (iyy), declared as such by the United Nations, the 13th anniversary of the United Nations World Programme of Action for Youth, and the 10th anniversary of the oas Program for the Promotion of Democratic Leadership and Citizenship (prolidem); That 2008 has been designated “Ibero-American Youth Year” within the framework of the XVIII Ibero-American Summit of Heads of State and Government, to be held in San Salvador, El Salvador, which will focus on the central theme “Youth and Development”; and The importance of fostering youth solidarity through young people’s ­participation in voluntary humanitarian activities, including both hunger and poverty reduction and emergency and risk-management situations in cases of disasters, regardless of whether such activities are promoted by the public ­sector or sponsored by the private sector or civil society organizations, as a way to strengthen their civic and democratic values; Underscoring that the Lecture Series of the Americas was created by the Permanent Council of the oas to promote democratic principles and values in the countries of the Hemisphere, through conferences on topics related to the hemispheric agenda, such as democracy and social development; and

390

chapter B

Highlighting the Model oas General Assembly (moas), carried out for the purpose of promoting, among youth, democratic values and a better understanding of the Organization as the main political forum of the Hemisphere, DECLARE: 1. Their commitment to foster among the youth of the Americas the values set forth in the oas Charter and the Inter-American Democratic Charter, so as to strengthen their political, social, and economic participation in the framework of a democratic society. 2. That a young citizenry committed to democratic values can strengthen ­relations among the peoples of the Hemisphere, based on mutual respect, fraternity, cooperation, solidarity, the acceptance of diversity, tolerance, and peace. 3. That respect for and the protection and promotion of human rights and fundamental freedoms of young people in the Americas are essential for the consolidation of democracy and the development of our peoples. 4. Their commitment to move forward in the promotion and observance of the economic, social, and cultural rights of young people, which are inherently linked to integral development, equitable economic growth, and the consolidation of democracy. 5. Their conviction that education and employment constitute priority areas, among others, for young people and strengthen democratic culture and values. 6. Their pledge to combat all forms of discrimination against youth, for reasons, among others, of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other condition, and to promote the participation of young leaders from groups in vulnerable situations, including, among others, indigenous youth and persons of African descent in the dynamics of development and democratic participation. […] 11. Their commitment to promote formal and non-formal education in democratic values and practices in order to develop knowledge and skills among the young population to prepare them for life in a democratic society and the full enjoyment of their human rights and fundamental freedoms. […] 14. That they recognize the contribution of young people to sustainable development and express their commitment to foster among them through formal and non-formal education and public information a culture that promotes environmental protection as an element that contributes to strengthened democratic and civic values. […]

65 Declaration of Medellin: Youth and Democratic Values

391

26. Their commitment to promote and implement strategies, policies, programs, and concrete measures designed to foster education for democracy, in particular for youth and women, and to increase support to civil society, especially to facilitate citizens’ engagement in policy-making processes and in the provision of civic and democracy education. 27. Their commitment to promote favorable conditions for full and effective political participation by young people conscious of their rights and responsibilities, and able and willing to become involved in decisions relating to their own development, thereby consolidating democracy in the Hemisphere. 28. That the participation of young people in decisions relating to their own development is a right and a responsibility, which makes them necessary actors in the formulation, implementation, and evaluation of public policies and gives them an important role in the fulfillment of the development goals of the United Nations Millennium Declaration. 29. The importance of creating or strengthening leadership programs for young people so that they may become promoters of civic and democratic values in their families and communities, in order to generate healthy and safe environments for their development. 30. That they pledge to promote greater participation and inclusion of young people in public affairs and civil society activities by ensuring favorable conditions, including, among others, in electoral observation processes, social volunteering activities, community-based programs, and activities related to the protection of the environment. 31. That they will encourage the creation of independent youth organizations and youth participation in political processes that enable them, collectively and democratically, to voice their ideas and expectations in society. 32. Their commitment to encourage the participation of youth in electoral processes and to strengthen their involvement in these processes by making them more responsive to young people’s needs and expectations, by reducing barriers, and by improving accessibility. 33. The importance of promoting the effective exercise of, and respect for, the right to identity of youth, especially through the universalization of civil registry, which is essential to the full exercise of their civil, political, economic, social, and cultural rights, as well as their participation in a democratic society. 34. Their commitment to promote, protect, and ensure, in conditions of equality, respect for the human rights of youth with disabilities, as well as to combat all forms of discrimination and promote the elimination of all types of obstacles and barriers to their development and their full inclusion in society, facilitating the exercise of their rights and duties as citizens in a framework of democratic values and principles.

392

chapter B

35. That, bearing in mind the positive impact of cultural activities, including cultural industries, they will endeavor to develop policies that strengthen in youth a recognition of, and appreciation and respect for, the value of cultural diversity, tangible and intangible cultural and historical heritage, including popular customs, and the contributions, inter alia, of indigenous people, as well as of persons of African descent and minority communities, and policies that generate greater understanding of the relationships among culture, development, and education, as factors that contribute to the strengthening and promotion of democratic values. […] 40. That they call on member states to promote programs to expand young people’s training in, and access to, the use of information and communication technologies, in order to reduce the digital divide and the knowledge gap that affect them and to strengthen their democratic participation in political, economic, social, and cultural forums. […] 43. That they request that the oas General Secretariat, in collaboration with the member states and in accordance with available financial resources and applicable rules and procedures in this regard: a. To promote greater participation by youth in the activities established by the Inter-American Program on Education for Democratic Values and Practices, which contributes to strengthening democratic culture through formal and non-formal education; developing and strengthening teaching methods for that purpose; fostering a culture of respect for human rights and peace, with a focus on equality and cultural pluralism; and promoting horizontal cooperation and the exchange of experiences among the different entities active in this area internationally, regionally, nationally, subnationally, and locally, as appropriate; b. To develop a regional information and evaluation system on the ­status of citizenship competencies, in coordination with the Regional System for Evaluation and Development of Citizenship Competencies and other entities that are carrying out pertinent similar initiatives in order to share best practices in education for democratic values and to identify opportunities for horizontal cooperation among governments, educational institutions, and civil society; c. To support the training of young people for more effective and ­efficient participation in the diverse sectors of society; d. To continue promoting the Lecture Series of the Americas as a means of fostering democratic principles and values among young people of the Hemisphere;

65 Declaration of Medellin: Youth and Democratic Values

[…]

393

e. To continue promoting the holding of Model oas General Assembly (moas) sessions in the countries of the Hemisphere, to foster in young people negotiation, leadership, and communication skills–essential components for life under democracy; f. To mainstream the youth perspective into the programs and activities of the oas, in particular, activities that focus on the promotion of democratic principles and values;

394 66

chapter B

Social Charter of the Americas – Excerpts

AG/doc.5242/12 Rev. 2, adopted by the General Assembly, 4 June 2012 (second plenary session), reviewed by the Style Committee THE GENERAL ASSEMBLY, Considering that the Charter of the Organization of American States (oas) provides that integral development encompasses the economic, social, educational, cultural, scientific, and technological fields through which the goals that each country sets for accomplishing it should be achieved; Taking into account that the Inter-American Democratic Charter recognizes that democracy and social and economic development are interdependent and mutually reinforcing, and that promotion and observance of economic, social, and cultural rights are inherently linked to integral development, equitable economic growth, and the consolidation of democracy and the rule of law in the states of the Hemisphere; Recognizing that social justice and equity are essential for democracy; Considering that the Charter of the oas establishes among its essential purposes to eradicate extreme poverty; Considering as well that extreme poverty constitutes an obstacle to development and, in particular, to the full democratic development of the peoples of the Hemisphere; and that its elimination is essential and constitutes a common and shared responsibility of the American states; […] Underscoring that these essential rights are not derived from one’s being a national of a certain state, but are based upon attributes of the human person, and that these rights must be reaffirmed, developed, improved, and protected in order to consolidate in the Americas a culture characterized by democratic institutions, personal liberty, social justice, and the entitlement of its peoples to self-determination; Reiterating the commitment of member states to the promotion and protection of human rights and fundamental freedoms without distinction as to race, nationality, creed, or sex; Recognizing further that the political participation of women, their full autonomy and independence, appreciation of their role in society and in the economy, and education that promotes gender equality are essential for development and democracy in all countries, […] RESOLVES to adopt the following: SOCIAL CHARTER OF THE AMERICAS

66 Social Charter of the Americas

395

Chapter I SOCIAL JUSTICE, DEVELOPMENT WITH EQUITY, AND DEMOCRACY Article 1 The peoples of the Americas legitimately aspire to social justice and their governments have a responsibility to promote it. Development with equity strengthens and consolidates democracy, since the two are interdependent and mutually reinforcing. The peoples of the Americas have the right to development in the framework of solidarity, equity, peace, and freedom, and member states have the responsibility to promote it with a view to eliminating poverty, especially extreme poverty, and achieving a decent standard of living for all. Everyone is born free and equal in dignity and rights. Member states reaffirm their commitment to universal respect for and observance of human rights and fundamental freedoms as essential elements to achieve social justice and strengthen democracy. Article 2 The promotion and observance of economic, social, and cultural rights are inherently linked to integral development, equitable economic growth, and the consolidation of democracy in the states of the Hemisphere. Member states commit to promoting and to progressively realizing the full achievement of economic, social, and cultural rights and principles, through policies and programs that they consider are the most effective and appropriate for their needs, in accordance with their democratic processes and available resources. Article 3 Member states, determined and committed to combating the serious problems of poverty, social exclusion, and inequity and to address their underlying causes and their consequences, have the responsibility to create favorable conditions for achieving development with social justice for their peoples, thus contributing to strengthening democratic governance. Member states will strengthen and foster policies and programs directed towards the achievement of societies that offer all people opportunities to benefit from sustainable development with equity and social inclusion. Article 4 Each member state has the primary responsibility for its development and, in choosing its economic and social system within a framework of democracy,

396

chapter B

should further the establishment of a more just economic and social order that will enable and contribute to the fulfillment of the individual. In this context, they reaffirm the imperative for the hemispheric community to support national development efforts consistent with the principles of the oas Charter and the commitment of member states to deepening solidarity and inter-American cooperation on development. Article 5 Combating corruption and other unethical practices in the public and private sectors strengthens a culture of transparency and is fundamental for long-term growth and poverty reduction. […]

67 Promotion and Strengthening of Democracy

397

67 Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter AG/RES 2766 (XLIII-O/13), adopted by the General Assembly, 5 June 2013 (2nd plenary session) THE GENERAL ASSEMBLY, Reaffirming the provisions and essential purposes and principles ­identified in the Charter of the Organization of American States; Sharing the conviction expressed in the Declaration of the Latin American and Caribbean Unity Summit that democracy is one of our region’s most valued conquests and that the peaceful transmission of power through constitutional means and in strict compliance with the constitutional rules of each of our states is the product of a continuous and irreversible process in which the region admits no interruptions or setbacks; Aware that the Charter of the Organization of American States establishes in its preamble that “representative democracy is an indispensable condition for the stability, peace and development of the region” and that one of the essential purposes of the Organization is “to promote and consolidate representative democracy, with due respect for the principle of nonintervention”; Aware also that the Charter of the Organization of American States establishes that “every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State. Subject to the foregoing, the American States shall cooperate fully among themselves, independently of the nature of their political, economic, and social systems”; Recalling that the Inter-American Democratic Charter states that “the peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it” and that “democracy is essential for the social, political, and economic development of the peoples of the Americas”; Recalling also that the Inter-American Democratic Charter reaffirms that the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society and recognizes the importance of the continuous development and strengthening of the inter-American human rights system for the consolidation of democracy; Aware that Article 34 of the Charter of the Organization of American States establishes that “the Member States agree that equality of opportunity, the elimination of extreme poverty, equitable distribution of wealth and income

398

chapter B

and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development”; Recalling that the Social Charter of the Americas recognizes that social justice and equity are essential for democracy; Recognizing that the Inter-American Democratic Charter establishes that “essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government”; Reaffirming that the participatory nature of democracy in our countries in different aspects of public life contributes to the consolidation of democratic values and to freedom and solidarity in the Hemisphere; Recognizing the importance of the Organization of American States (oas) continuing to develop programs and activities aimed at promoting democratic principles and practices and strengthening a democratic culture in the Hemisphere, as well as the advisability of the oas consulting and cooperating on an ongoing basis with member states; Recalling that the Inter-American Democratic Charter establishes that “the promotion and observance of economic, social, and cultural rights are inherently linked to integral development, equitable economic growth, and to the consolidation of democracy in the states of the Hemisphere”; Bearing in mind that the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights express the values and principles of liberty, equality, and social justice, which are inherent to democracy; Recalling that the Inter-American Democratic Charter establishes that “it is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy”; Taking into account resolutions AG/RES. 1957 (XXXIII-O/03), “Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter”; AG/RES. 2154 (XXXV-O/05), “Promotion of Regional Cooperation for Implementation of the Inter-American Democratic Charter”; AG/RES. 2251 (XXXVI-O/06), “Promotion of Regional Cooperation for Implementation of the Inter-American Democratic Charter on the Occasion of Its Fifth Anniversary”; and AG/RES. 2327 (XXXVII-O/07), AG/RES. 2422 (XXXVIII-O/08), AG/RES. 2480

67 Promotion and Strengthening of Democracy

399

(XXXIX-O/09), AG/RES. 2555 (XL-O/10), AG/RES. 2694 (XLI-O/11), and AG/RES. 2705 (XLII-O/12), “Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter”; Having seen the reports of the Permanent Council on the implementation of resolutions AG/RES. 2044 (XXXIV-O/04) and AG/RES. 2045 (XXXIV-O/04) (CP/doc.4024/05 and CP/CISC-182/05, respectively), resolution AG/RES. 2119 (XXXV-O-05), the reports of the Secretary General on the implementation of resolutions AG/RES. 1993 (XXXIV-O/04) [CP/CISC-174/05]; resolution AG/RES. 2327 (XXXVII-O/07); and the implementation of resolutions AG/RES. 2422 (XXXVIII-O/08), AG/RES. 2555 (XL-O/10), and AG/RES. 2694 (XLI-O/11); Taking note that the Declaration of Mar del Plata, “Creating Jobs to Fight Poverty and Strengthen Democratic Governance,” of the Fourth Summit of the Americas reaffirmed the “commitment to fight poverty, inequality, hunger, and social exclusion in order to raise the standard of living of our peoples and strengthen democratic governance in the Americas”; Recalling that in the Declaration of Mar del Plata, the Heads of State and Government reiterated their “commitment to the oas Charter and the InterAmerican Democratic Charter” and reaffirmed their “resolve to strengthen their full and effective implementation”; Recalling also that in the Declaration of Commitment of Port of Spain, “Securing Our Citizens’ Future by Promoting Human Prosperity, Energy Security and Environmental Sustainability,” of the Fifth Summit of the Americas the Heads of State and Government reaffirmed their commitment to “uphold the principles of and fully implement the Inter-American Democratic Charter”; Considering that the Declaration of Nuevo León of the Special Summit of the Americas reaffirmed the Hemisphere’s commitment to democracy and reiterated the commitment to the full application of the Inter-American Democratic Charter, which constitutes an element of regional identity and, projected internationally, is a hemispheric contribution to the community of nations; and also recognized that corruption and impunity weaken public and private institutions, erode social values, undermine the rule of law, and distort economies and the allocation of resources for development; Reaffirming solidarity and inter-American cooperation as effective means of promoting and strengthening democratic governance in the respective countries; and Taking note of the Final Report of the Dialogue on the Effectiveness of the Implementation of the Inter-American Democratic Charter (CP/doc.4669/11 rev. 3), which resulted from the implementation of resolutions AG/RES. 2555 (XL-O/10) and AG/RES. 2694 (XLI-O/11), “Promotion and

400

chapter B

Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter,” RESOLVES: 1. To continue promoting democratic cooperation in order to support member states, at their request, in their efforts to strengthen democratic institutions, values, practices, and governance; fight corruption; enhance the rule of law; bring about the full exercise of human rights, and reduce poverty, inequality, and social exclusion. 2. To reaffirm that the promotion and protection of human rights is a prerequisite for a democratic society, and that it is important to continue to develop and strengthen the inter-American human rights system. 3. To recognize the importance of promoting the principles, values, and practices of a democratic culture; and to request the General Secretariat to continue supporting this objective through training programs to promote the principles, values, and practices of a democratic culture, on the basis of Articles 26 and 27 of the Inter-American Democratic Charter, and to improve awareness, disseminate the precepts, and promote the application of this interAmerican instrument in the countries of the Hemisphere. Furthermore, to instruct the General Secretariat to continue to support the Permanent Council and the member states that so request in the implementation of the InterAmerican Program on Education for Democratic Values and Practices. 4. To reaffirm, as applicable, the mandates contained in resolution AG/RES. 2705 (XLII-O/12), “Promotion and Strengthening of Democracy: Follow-up to the Inter-American Democratic Charter,” and in that context, to reiterate the request to the Secretary General to present a report to the Permanent Council on all cases in which action on his part is called for in the Charter of the Organization of American States and the Inter-American Democratic Charter. 5. To highlight the substantive contribution made by the Organization of American States (oas) to the strengthening and development of electoral processes and systems in the member states, through oas electoral observation missions, electoral advice, and technical cooperation, upon the request of a member state and consistent with the Declaration of Principles for International Election Observation. 6. To request the General Secretariat to provide assistance to member states that so request in the implementation of recommendations contained in the reports of oas electoral observation missions. 7. To encourage donors to pursue, through the General Secretariat, a coordinated donor approach to the support of oas electoral observation missions in order to facilitate the early planning of missions.

67 Promotion and Strengthening of Democracy

401

8. To recommend to the General Secretariat that it support the modernization and strengthening of democratic institutions in the member states that so request, and promote cooperation and dialogue among these institutions as a means to build capacity and share experiences, including in the fields of civil registry, legislative cooperation and modernization and electoral technologies, decentralization and local governments, public administration and transparency, community participation, capacity building for youth and children on democratic values and practices, information and communications technologies (icts), and e-government. 9. To request the General Secretariat and member states to continue to promote a hemispheric discussion of issues relating to democratic governance, through dialogue, forums, and seminars. 10. To recognize the important role of participation by all sectors of society, including civil society, in the consolidation of democracy, given that such participation is one of the vital elements for the success of development policies. 11. To instruct the Permanent Council to continue the dialogue on the effectiveness of the implementation of the Inter-American Democratic Charter, taking into account all the topics addressed and discussions contained in the Final Report (CP/doc.4669/11 rev. 3), approved on December 14, 2011. 12. To request the General Secretariat to report to the General Assembly at its forty-fourth regular session on the implementation of this resolution. Execution of the activities envisaged in this resolution will be subject to the availability of financial resources in the program-budget of the Organization and other resources.

402

chapter B

II Community of Latin American and Carribbean States/Rio Group 68 Acapulco Commitment to Peace, Development and Democracy – Excerpts Adopted by the Heads of State of the member countries of the Permanent Mechanism for Consultation and Concerted Political Action, Acapulco (Mexico), 29 November 1987 The Heads of State of the member countries of the Permanent Mechanism for Consultation and Concerted Political Action, Argentina, Brazil, Colombia, Mexico, Panama, Peru, Uruguay and Venezuela, meeting in Acapulco, Mexico, have held talks in this city to study the major political and economic challenges our countries are facing and to seek answers, on the basis of the fundamental affinities that unite us, to fulfill the aspirations and legitimate needs of our peoples for progress and well-being. 1. The guiding principle of our work has been our basic agreement that it is imperative to increase concerted political action among our governments, as a result of the encouraging experience of the Permanent Mechanism for Consultation and Concerted Political Action and its immediate antecedents: the actions of the Contadora Group and its Support Group. We have been decidedly inspired by our identification of a set of common interests, a commitment to democracy with development, to justice and independence, and a shared sense of solidarity with all the peoples of our region: Latin America and the Caribbean. This broad confluence of interests has led us to conclude that the Permanent Mechanism provides a suitable opportunity and an appropriate framework for us to meet regularly once a year. 2. International negotiation requires the formation of a joint force to exert influence and make decisions. Consequently, only greater identity and improved coordination of the interests of Latin America and the Caribbean will reduce the region’s vulnerability to external factors. Such goals are ­consistent with the historic progress of our nations and with a concept of shared responsibility in solving the problems that affect the international community. 3. We call on the Heads of State of the industrialized countries to join in political dialogue that will make it possible to surmount the obstacles to ­development, to the restructuring of the world economy and to decision-­ making related to peace and security.

68 Acapulco Commitment to Peace, Development and Democracy 403

4. Embracing the ideal of our nations’ unity and democracy, we extend a fraternal invitation to the leaders of Latin America and the Caribbean to join us in a renewed commitment to integration and cooperation for development that will lead to a true community of all our nations. 5. Our peoples today are showing a clear awareness of the magnitude and nature of the challenges they face domestically, as well as in the process of their incorporation into the international sphere. Consequently, we have agreed on the historical imperative of building a common project for development sustained by our own initiative and capabilities, as well as by the will to step up the process of regional integration, strengthen our cultural identity and increase our countries’ participation in international relations. 6. There is a need to translate the force of our solidarity into action. Consequently the eight Heads of State gathered in Acapulco agree to contribute to defining a development project for Latin America and the Caribbean founded on concerted action and integration for peace, security, democracy and social well-being. The legitimate aspirations of our peoples for progress demand such measures. […] THE SECURITY OF OUR REGION: PEACE, DEMOCRACY AND DEVELOPMENT 21. With the aim of intensifying actions favoring development with democracy, justice and independence, we consider it necessary to affirm the concept that the security of our region must serve the aspects of peace and stability as well as those concerning political, economic and financial vulnerability. In this regard, we have made a commitment to coordinate actions to: […] – Contribute, through cooperation and consultation, to the defense, strengthening and consolidation of democratic institutions […] – Agree on positions with the objective of strengthening multilateral actions and democracy in the adoption of international decisions […] 24. We express our gratitude to the governments and sectors of the Central American societies involved in these important achievements, which open a path of hope in attaining the shared goal of stable peace and democracy in the region. In particular, we underline the progress already made in the field of national reconciliation, amnesty, the reestablishment of basic freedoms and the establishment of a Central American Parliament. […]

404

chapter B

54. We recognize our cultural heritage as an essential element in the character of Latin America which enables us to link ourselves to the complex realities of the modern world and conserve our historic roots at the same time. This heritage will also enable us to strengthen democracy as our own system of life and set of values. We also assume the commitment to make cultural integration promote the overall development and modernization of our societies.

69 Asunción Declaration

69

405

Asunción Declaration – Excerpts

Adopted by the Eleventh Summit of Heads of State and Government of the Rio Group, Asunción (Paraguay), 24 August 1997 Shared Principles and Values 1. We, the heads of State and Government of the Permanent Mechanism for Consultation and Concerted Political Action – the Rio Group, meeting in the city of Asunción, Paraguay, on 23 and 24 August 1997, reaffirm the principles, objectives and values shared by the countries of Latin America and the Caribbean, which are aimed at ensuring peace and the common welfare, defending representative democracy and developing a joint strategy on the basis of cooperation and integration to improve the living conditions of our people in a context of respect for the sovereignty, self-determination and ­juridical equality of States. 2. Meeting again on the basis of these principles and objectives, we reaffirm our appreciation for the Rio Group’s valuable support of regional integration, unity and solidarity, and we therefore renew the commitment and reaffirm the willingness of our Governments to strengthen the Rio Group as the most ­representative mechanism for consultation and concerted political action in the region, and an acknowledged representative of Latin America and the Caribbean in relations with other regions and countries. 3. On this occasion, we note with satisfaction the progressive fulfilment of the commitments made since the creation of the Mechanism, especially in promoting and coordinating actions to defend, strengthen and consolidate democracy in our region. Challenges to the Consolidation of Democracy 4. As leaders who are committed to the full and unrestricted validity of institutions and the rule of law, we must promote initiatives that enable us to meet the current challenges and thereby effectively foster ethical values and democratic principles in society. 5. We agree that it is essential to encourage effective and responsible participation by citizens in public life, help strengthen political parties and promote civic organizations and their contribution to the discussion of issues of public interest, bearing in mind the diversity among them, on the basis of respect and pluralism. In this context, we consider it necessary to guide the efforts of ­citizens and authorities jointly to reach higher levels of transparency in ­public  management, respect for democratic institutions and effective social participation.

406

chapter B

6. We confirm our commitment to fight drug trafficking and related crimes, together with terrorism and corruption, which are scourges that threaten democratic stability and public safety, and our determination to promote and guarantee the full exercise of fundamental human rights. 7. We therefore undertake to continue to work together to prevent such crimes by constantly improving our national laws and judicial institutions, with special emphasis on prevention through education. Education for Democracy and Guidelines for Action 8. We are convinced that a renewed effort to promote complete, integrated and democracy-based education in Latin America and the Caribbean in a context of growing interdependence, technological development and globalization will help strengthen democratic civic culture on the basis of the full and effective enjoyment of human rights. We also express our support for values such as tolerance, solidarity, equity and respect for the diversity and cultural identity of our peoples, which will enable us to defend and consolidate democratic governance as a factor in the development and socialization of values, as a promoter of mobility and the social advancement of individuals and, finally, as an essential means of achieving cohesion and socio-cultural integration. 9. The Declarations of Bariloche and Viña del Mar, issued by the Fifth and Sixth Ibero-American Summits, respectively, are of special importance in this regard. 10. In this context, and in order to give greater impetus to democratic civic culture, we have agreed to adopt the following measures: (a) To incorporate in national educational curricula the kind of objectives and content that will develop democratic culture at all levels, in order to bring up ethical individuals whose behaviour is characterized by solidarity and integrity. Therefore, the participation of teachers, families and students in designing and implementing curricula for the education of democratic citizens should be encouraged. (b) To instruct the competent ministers to identify possible sources of cooperation, both regional and international, in the field of education for democracy. Consequently, special attention should be given to strengthening the dynamics of cooperation and sharing of existing experience in this area, as a basic factor in the full consolidation and deepening of democracy. In addition, suitable mechanisms will be established for implementing programmes aimed at improving training and encouraging exchanges among the youth and youth organizations in the region. (c) To strengthen and expand the teaching of history, focusing it on the knowledge, understanding and unity of peoples, in order to enhance political culture, intercultural awareness and self-identity.

69 Asunción Declaration

[…]

407

(d) To promote, within their fields of competence, the active participation of the mass media and media professionals in the region, in order to strengthen democratic civic culture by setting up new forms of cooperation and exchanges of experience. (e) To formulate a joint proposal on education for democracy, with a view to the Second Hemispheric Summit, to be held in Chile in April 1998, where education will be one of the main agenda items. We also hope that the thinking of the Rio Group in this field will be of use in the discussions on the ethical values of democracy at the Seventh Ibero-American Summit, to be held in Venezuela.

408 70

chapter B

Declaration on the Defence of Democracy

Adopted by the Heads of State and Government of the Rio Group, Asunción (Paraguay), 24 August 1997 (Eleventh Summit) 1. We, the heads of State and Government of the Rio Group, have conducted an intensive exchange of views on the need to preserve and strengthen representative democracy, the value of which is shared by all its members, and the effective exercise of which constitutes an obligation for its member States. 2. We are convinced that representative democracy is the foundation of the legitimacy of political systems and an essential condition for the peace, stability and development of the region, and for the hemispheric integration process in which our countries are involved. 3. We agree that the elimination of extreme poverty, the achievement of social justice and the promotion of forms of civic participation, as well as the improvement of the living conditions and general well-being of our peoples, are permanent objectives of our countries which may be more easily achieved through cooperation and coordination among democratic Governments. 4. We reiterate that the promotion and observance of ethical values and respect for human rights are the foundation and raison d’être of the legitimacy of political systems, and that only democracy can effectively guarantee that they remain valid. 5. We reaffirm that any attack on the democracy of a country of the region constitutes an assault against the principles which underlie the solidarity of the States of the Americas. 6. Therefore, in the quest for the preservation of representative democracy and the full validity of institutions, we agree that, should circumstances arise in any of the member countries of the Rio Group which disrupt the rule of law or entail a breach of the constitutional order, the secretariat pro tempore will convene a meeting of the Ministers for Foreign Affairs to consider the situation.

71 Cartagena Commitment to Democracy

71

409

Cartagena Commitment to Democracy

Adopted by the Heads of State and Government of the Rio Group, Cartagena de Indias (Colombia), 16 June 2000 (14th Summit) The Heads of State and Government of the Rio Group, meeting in the city of Cartagena de Indias, on the occasion of the XIV Summit of Heads of State and Government of the Rio Group, reaffirm our unshakeable commitment to peace, strengthening of democracy and promotion of social and economic development of our peoples, as principles that guide the actions of our Governments, in both their domestic and international policies. We reaffirm our firm conviction that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. As the new millennium unfolds, we reaffirm our intention to strengthen representative democracy as a system of government, promote its values as a way of life and defend the institution of democracy and the rule of law in Latin America and the Caribbean. We wish to express, in particular, our commitment to periodic elections based on the principles of legality, transparency and equity and organized and sanctioned by independent organs of the State. We also express our intention to improve the quality of our democratic institutions, through greater social integration and the effective, ethical and responsible participation of our citizens. We believe that closer integration among our nations guarantees the strengthening of democracy and promotes peaceful coexistence in and among the nations of the hemisphere.

410

chapter B

72 The Cusco Consensus “Democratic Governance: Defence and Consolidation of Democracy” – Excerpts Adopted by the Heads of State and Government of the Rio Group, Cusco (Peru), 24 May 2003 (17th Summit) We, the Heads of State and Government of the countries integrating the permanent mechanism for consultation and concerted political action, gathered in the city of Cusco from 23–24 May 2003, for the XVII Summit of the Rio Group; Aware of the challenges in view of fast-changing developments in the regional and international situation since our last summit, we reaffirm our decision to confront these challenges, in a coordinated manner, through concrete actions to improve the lives of our peoples; We renew our conviction that shared principles and consensus embraced represent the historical treasures we have accumulated since the inception of our mechanism, which has been progressively strengthened since the Rio Declaration of 1986; We believe that the expansion and increase of poverty, caused by a new and prolonged period of economic stagnation, poses a fundamental threat to democratic governance, to the stability of its institutions and to social peace. This situation particularly has its most devastating effects on the most vulnerable groups of society, denying them the opportunity to use their productive potential in full; In this sense, we identify as the main mission of the Rio Group the strengthening of democratic governance by creating consensus to consolidate the democratic institutional order and alleviate the vulnerabilities confronting the region. Therefore, we have given special treatment to two thematic axes: (1) the role of political parties in the strengthening of democratic institutionality and (2) the creation of innovative financial mechanisms designed to secure democratic governance and contribute to the alleviation of poverty; Likewise, we deem indispensable to reinforce the Rio Group’s initiative to support the multilateral system for peace, security and development based on strict compliance with international law and firm adherence to the aims and principles of the un Charter; We therefore adopt this Consensus, which represents the strategic agenda for the activities of the Rio Group drafted out of reflections on the situation of Latin America and the Caribbean from their own perspective. This focus will intensify the process of consultation and concerted action launched by the Rio Group on problems that affect the region and on how to strengthen our participation within the international system.

72 The Cusco Consensus

411

Strategic Agenda for the Rio Group Action […] Democratic Governance: Defense and Consolidation of Democracy a The Strengthening of Democracy and the Rule of Law 11. We reaffirm our commitment to consolidate and strengthen democracy, exercise its values, defend its institutions, as well as respect and promote human rights. We notice with satisfaction that our countries are currently experiencing the most extensive and deep process of democratization in their history. Never before did the region have so many democratically elected regimes nor as many consecutive democratic transitional governments. 12. We bear in mind that democracy and economic and social development are interdependent and mutually reinforced. To consolidate democratic institutionality, our countries need to include the poorer segments of the population in the gains stemming from the economic management, while strengthening social cohesion and governance. Therefore, it is a high priority and responsibility of our governments to tend to these needs and provide a solution to social exclusion-related problems. However, the efforts of our governments require the support of the international system, by means of measures, such as opening up market access to products from the region and increasing the flow of investments to the region. 13. We realize that only democratic governments that have succeeded in achieving a high level of governance can tend to the legitimate social needs of our people. At the same time, the strengthening of the rule of law, access to an effective and impartial justice, the enforcement of human rights and the establishment of national consensus will secure a greater degree of effectiveness in democratic governance. Within this framework, we renew our firm commitment to the validity and full application of the Inter-American Democratic Charter as an instrument to promote the development and strengthen representative democracy and favor citizen participation. b Democracy and Political Parties 14. The process to consolidate democracy in the region demands that we continue to establish more efficient political systems. In this sense, we intend to proceed in our continuing effort to reform the State, improve the quality and transparency of the public administration, consolidate the legitimacy of its institutions and guarantee respect for human rights. Moreover, to favor citizen participation, promote education for citizenship and democracy, fight corruption and impunity, as well as lead to the reform and strengthening of public

412

chapter B

authorities, particularly of the Judiciary, all of which should be enshrined within a concept of interculturality. 15. Parties system and political parties, as well as movements and groups play a central role in democracy. Consequently, it is necessary to strengthen starting from the premise that there is no democracy without parties or parties without democracy, while understanding that social and popular organizations are an essential factor for democratic participation in the frame of the Constitution of each of our countries. On this basis, we commit ourselves to put forth our greatest efforts, and when possible in a concerted manner, in order to: a. Deepen and provide a platform for the development of dialogue and a consensus between political parties, movements and groups, as well as between them and the organized civil society. b. Develop democracy’s participatory approach, within the framework of their respective constitutional requirements, as a core element of ­pluralism. In addition, the participatory approach of democracy helps to further enhance its representativeness. c. Promote partisan and electoral laws destined to ensure the commitment of political parties, as well as movements and groups to democratic institutionality, while at the same time encouraging electoral participation. d. Secure the autonomy of political parties, movements and groups from the economic powers by means of norms that promote free and fair electoral contests, especially equal access to the communication media. e. Encourage financial transparency of political parties and movements as a fundamental aspect of public ethics and the fight against corruption. f. Promote inclusive political systems by encouraging, through the competent national instances, public financing of political parties, movements and groups, electoral campaigns, as well as limitations to electoral expenditure. g. Promote internal democracy in political parties, movements and groups, especially when nominating and running leaders and candidates for popular election. h. Promote equal opportunities for men and women and the elimination of all forms of discrimination, as well as develop youth’s interest in politics. The later to be understood as a free [and most needed] choice of the individual to intervene in public matters. i. Support political training programs and the preparation of leaders, particularly for women, youth, ethnic groups and marginalized populations, in terms of strengthening education for citizenship and democracy in all levels of social life and, especially, from school.

72 The Cusco Consensus

[…]

413

j. Highlight the importance of strengthening democracy by exercising freedom of information, promoting ethical journalism and social responsibility, while simultaneously reinforcing the right to information and the right to reply by all political parties, movements and groups.

414

chapter B

73 Special Declaration about the Defense of Democracy and Constitutional Order in the Community of Latin American and Carribean States (celac) Adopted by the Heads of State and Government of the Latin American and the Carribean countries, Caracas (Venezuela), 3 December 2011 The Heads of State and Government of the Latin American and the Caribbean countries, gathered in Caracas, Bolivarian Republic of Venezuela on December 3rd, 2011, within the framework of the Foundational Summit of the Community of Latin American and Caribbean States: We reiterate that our community is founded on the utmost respect for the Rule of Law, the respect for sovereignty, and territorial integrity, the defence of democracy, the peoples’ sovereign will, social justice, the respect for Human Rights and fundamental liberties, which are essential requirements for the participation in different organizations of the Community of Latin American and Caribbean States (celac) and are conquests of the Latin American and Caribbean peoples which cannot be taken away. We ratify that the full currency of the Rule of Law, the respect for lawfully established authorities as an expression of the peoples’ sovereign will, the noninterference in domestic affairs and the defense of democratic institutions are indispensable guarantees for ensuring peace, stability, economic prosperity and social justice, as well as the effective exercise of Human Rights and fundamental liberties, and that any rupture or threatened rupture of the constitutional order and the Rule of Law in one of the Member States of the Community of Latin American and Caribbean States jeopardises its normal development and constitutes a serious event that calls for determined action on the part of the Latin American and Caribbean community. We reaffirm that democracy, sustainable development, respect for all human rights and fundamental freedoms, including the right to development, are interdependent and strengthen one another, and are all equally based on the principles of objectivity, impartiality and universality. We highlight the importance of commitments made in the field of democracy in the framework of the United Nations and regional instruments. We also bear in mind that democracy is a universal value that is part of the historical heritage of the Rio Group (GRio) and the Latin American and Caribbean Summit on Integration and Development (calc), which develop in a broad manner the democratic principles we share. We express our rejection and condemnation of any attempt to alter or ­subvert the constitutional order and the normal functioning of institutions in any Member State of the Community of Latin American and Caribbean States.

73 CELAC: Special Declaration about the Defense of Democracy

415

We agree: – To adopt a clause of commitment to the promotion, defence and protection of the Rule of Law, the democratic order, the sovereignty of the peoples, human rights and fundamental liberties, including, among others, the right to life, freedom and security of a person, the non-subjection to torture or cruel, inhuman or degrading punishment or treatment, not being arbitrarily arrested, imprisoned or banished, nor subjected to summary and arbitrary execution or enforced disappearance, and to freedom of opinion and speech. – That, when the constitutional government of a Member State considers that there is a threatened rupture or alteration of the democratic order that affects it substantially, it may notify such situation to the Pro Tempore Presidency, which, with the assistance of the Troika, shall be responsible for disclosing the situation to all Member States, so that they can decide on the adoption of specific, concerted actions of cooperation and the statement of the Latin America and Caribbean Community for the defense and preservation of its democratic institutions. – In the event of rupture of the constitutional order or of the Rule of Law, the Pro Tempore Presidency, with the support of the Troika, shall convene a Extraordinary Meeting of Foreign Ministries of the Member States, so that, with the full participation of the legitimate Government affected and in a swift and timely manner, they decide by consensus, taking into account other ongoing efforts, to adopt, among others, the following measures: 1. To conduct diplomatic efforts in the affected State in order to contribute to the restoration of the democratic institutional political process and of the Rule of Law as soon as possible; 2. To prevent the State in which the rupture of the constitutional order or of the Rule of Law has occurred, from enjoying the right to participate in the different bodies and instances and from enjoying the rights and benefits arising from their membership in the ­Latin American and Caribbean Community, until the constitutional order is restored. The measures adopted with regard to the events to which this Declaration refers must be consistent with international law and the domestic legislation of the affected State. – End the measures referred to above when it is determined, on the basis of periodic evaluations of the situation, that the causes giving rise to their adoption have completely disappeared.

416 III

chapter B

Southern Common Market

74 Ushuaia Protocol on Democratic Commitment in the Southern Common Market, the Republic of Bolivia and the Republic of Chile Volume 2177, A-37341, 383, adopted by the member states of the Southern Common Market, the Republic of Bolivia and the Republic of Chile, Ushuaia (Argentina), 24 July 1998 The Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States members of the Southern Common Market (mercosur); the Republic of Bolivia; and the Republic of Chile, hereinafter referred to as the “States Parties” to this Protocol, Reaffirming the principles and objectives of the Treaty of Asunción and the protocols thereto and of the integration agreements concluded between mercosur and the Republic of Bolivia and between mercosur and the Republic of Chile, Reiterating the statement in the Las Leñas Presidential Declaration of 27 June 1992 to the effect that fully functioning democratic institutions are an indispensable condition for the existence and development of mercosur, Ratifying the Presidential Declaration on democratic commitment in mercosur and the Protocol of Accession to this Declaration by the Republic of Bolivia and the Republic of Chile, Have agreed as follows: Article 1 Fully functioning democratic institutions are an indispensable condition for development of the process of integration between the States Parties to this Protocol. Article 2 This Protocol shall apply to relations deriving from the respective integration agreements in force between States Parties to this Protocol in the event of a breakdown of democracy in any of those Parties. Article 3 Any breakdown of democracy in a State Party to this Protocol shall give rise to the application of the procedures envisaged in the following articles.

74 Ushuaia Protocol on Democratic Commitment

417

Article 4 In the event of a breakdown of democracy in a State Party to this Protocol, the other States Parties shall promote the relevant consultations among ­themselves and with the State concerned. Article 5 If the consultations mentioned in the previous article are unsuccessful, the other States Parties to this Protocol, within the specific framework of the integration agreements in force among them, shall consider the nature and scope of measures to be applied, taking into account the seriousness of the existing situation. Such measures may range from suspension of the right to participate in various bodies of the respective integration processes to suspension of the rights and obligations deriving from those processes. Article 6 The States Parties to this Protocol shall adopt the measures envisaged in article 5 above by consensus, as appropriate under the integration agreements in force among them. The State concerned shall be notified of them but shall not participate in the process of their adoption. The said measures shall enter into force on the date of notification. Article 7 Once applied to the State Party concerned, the measures mentioned in article 5 shall be terminated as from the date on which the said State is notified that the States which adopted them have agreed that democracy has been verified to be fully restored. This should take place as soon as restoration becomes a reality. Article 8 This Protocol is an integral part of the Treaty of Asunción and of the respective integration agreements concluded between mercosur and the Republic of Bolivia and between mercosur and the Republic of Chile. Article 9 This Protocol shall apply to any future integration agreements concluded between mercosur and Bolivia, between mercosur and Chile or among the six States Parties to this Protocol. Such instruments should include an explicit statement to that effect.

418

chapter B

Article 10 This Protocol shall enter into force as between the States Parties of mercosur 30 days after the date on which the fourth instrument of ratification is deposited with the Government of the Republic of Paraguay. This Protocol shall enter into force as between the States Parties of mercosur and the Republic of Bolivia and the Republic of Chile, respectively, 30 days after the Secretary-General of the Latin American Integration Association (laia) informs the other five signatory parties in each case that the said Party has completed the domestic procedures for incorporation into its national legislation.

75 SICA: Alliance for the Sustainable Development

419

IV Central American Integration System 75 Alliance for the Sustainable Development of Central America – Excerpts Adopted at the Central American environment summit meeting for sustainable development, Managua (Nicaragua), 12 and 13 October 1994 I Introduction 1. We the Presidents of the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama and the representative of the Prime Minister of Belize, meeting at the Central American Environment Summit for Sustainable Development, held in Managua, have agreed that prevailing ­circumstances in the region call for a new course of action, and we have accordingly decided to adopt an integrated strategy for sustainable development in the region. 2. As we stated in the Declaration of Guácimo, we have embodied this approach in a national and regional strategy that we have called the “Alliance for Sustainable Development”, a comprehensive Central American initiative in the political, moral, economic, social and ecological fields which we have translated into a programme of action, hoping thereby to set an example for other regions. 3. The Alliance for Sustainable Development is an initiative involving short, medium and long-term policies, programmes and activities which marks a shift in our pattern of development, in our individual and collective attitudes and in local, national and regional policies and projects in so far as they affect the political, economic, social, cultural and environmental sustainability of societies. 4. The Alliance is a regional strategy for the coordination and sharing of interests, development initiatives and responsibilities and for the harmonization of rights. Its implementation is based on institutional structures; it does not replace existing regional integration mechanisms or instruments, but complements, supports and strengthens them both within and outside the region, especially in making sustainable development the central strategy and policies of States and of the region as a whole. With the Alliance, the commitments already entered into by states for the new process of sustainable development in Central America are confirmed and broadened. 5. In this quest for, and commitment to a pattern of sustainable development specific to the Central American community, we are taking responsibility for a better utilization and more efficient management of our region’s resources.

420

chapter B

6. In this context, we believe that the international community can and should contribute to sustainable development in Central America by changing its own attitudes, policies and course of action in respect of the region; this will place relations between the international community and the countries of the isthmus on an entirely new and mutually beneficial footing. 7. The Central American Council for Sustainable Development, the Alliance’s executive authority, will promote and negotiate the conclusion of agreements designed to support sustainable development in Central America with countries, groups of countries and regions and with regional and international cooperation organizations with the consent and support of the institutions directly responsible at both the national and regional levels. 8. Central America will give concrete form to rights and responsibilities established in Agenda 21, adopted in Rio de Janeiro, in an endeavour to become a model of sustainable development for all countries; our guiding principles for the future will be respect for life in all its forms; continuous improvement of the quality of life; respect for the vitality and diversity of our earth; peace; participatory democracy; the observance, promotion and protection of human rights; respect for the multicultural character and ethnic diversity of our peoples; economic integration within the region and with the world outside; and the responsibility of succeeding generations for sustainable development. […] III Principles of the Alliance for Sustainable Development 10. The seven basic principles to which we Central Americans are subscribing with a view to achieving sustainable development are set out below. These principles will prevail in all policies, programmes and activities promoted separately or jointly by States and by civil society to fulfil their basic common goals and commitments. […] B Improvement of the Quality of Human Life 12. The aim of sustainable development is to improve and guarantee the quality of human life. This will make it possible for individuals to develop their potential and to live lives of dignity and accomplishment. To achieve this, it is imperative to provide security through human development, fostering participatory democracy, respect for cultural pluralism and ethnic diversity, access to education and promotion of technical and vocational training that will further economic growth with equity.

75 SICA: Alliance for the Sustainable Development

421

C Sustainable Utilization and Respect for the Earth’s Vitality and Diversity 13. Local, national and regional development will be based on the sustainable utilization and management of the earth’s resources and on protection of the structure, functions and diversity of natural systems, on which the human species and other species depend. To that end, appropriate action will be taken to: (a) Preserve the systems that sustain life and the ecological processes that determine climate and air and water quality, regulate the flow of waters, recycle essential elements, create and generate soil and enable ecosystems to renew themselves; (b) Protect and conserve the biodiversity of all species of plants, animals and other organisms, of genetic stocks within each species and of the range of ecosystems; (c) Ensure the sustainable utilization of natural resources, especially the soil, wild and domesticated species, woodlands, cultivated land and marine and freshwater ecosystems. D Promotion of Peace and Democracy as Basic Forms of Human Coexistence 14. Political freedom, the observance, protection and promotion of human rights, the fight against violence, corruption and impunity, and respect for valid international treaties are all essential elements in the promotion of peace and democracy as basic forms of human coexistence. 15. Peace and democracy are strengthened through popular participation. Accordingly, sustainable development requires the reinforcement of democratic institutions and the mechanisms of participation and the rule of law. E. Respect for the multiculturalism and ethnic diversity of the region […] 19. Respect for ethnic diversity can exist only where there is peace and democracy and easy access to opportunities for sustainable development. […] IV Foundations of the Alliance for Sustainable Development […] 23. Democracy, characterized by popular participation in decisions affecting society, requires that public policies and patterns of production and coexistence should be wide-ranging and participatory. Moreover, the struggle against poverty cannot be won unless there is economic growth, and it can only be

422

chapter B

achieved by improving the quality of human resources and the economic opportunities open to the disadvantaged through social policy. 24. Democracy and economic and social development are not sustainable without conserving the environment and natural resources, which goes to show once again that the element added by the sustainable development approach is its emphasis on simultaneous efforts to achieve democracy, economic growth with equity, social development, the sustainable management of natural resources and improved environmental quality. A Democracy 25. Democracy, as a basic form of human coexistence, and sustainable development are closely linked. Only in a democratic and participatory society governed by the rule of law will Central America achieve well-being and justice. 26. Support for the consolidation of democracy and the protection and full guarantee of human rights is an expression of respect for human dignity, and therefore constitutes one of the pillars of sustainable development. 27. Decentralization and deconcentration of the political, economic and administrative activity of the State are factors making that feasible, as are the strengthening and consolidation of democratic institutions, local administrations and municipal governments, as well as non-governmental and community organizations. 28. The firm and lasting peace that will emerge from this model of human coexistence will make it possible to achieve sustainable development, which requires harmonious relationships among people and between people and the natural environment. B Social and Cultural Development 29. The major challenge facing society is to eradicate extreme poverty in our countries. Poverty is not only proof of a serious state of backwardness, but also a manifestation of inequality, an obstacle to peaceful conciliation and national integration and a potential threat to democratic coexistence and a firm and lasting peace. […]

76 SICA: Framework Treaty on Democratic Security

423

76 Framework Treaty on Democratic Security in Central America – Excerpts UNTS 2001, Vol. 2007, 217, adopted by the Governments of the Republic of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, San Pedro Sula (Honduras), 15 December 1995, in force since 26 December 1997 The Governments of the Republic of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, hereinafter referred to as “The Parties,” CONSIDERING That the basic goal of the Central American Integration System and of the Alliance for Sustainable Development is to integrate Central America so that it will be consolidated as a region of peace, freedom, democracy and development; That the goals of the Central Integration System, which were established in the Tegucigalpa Protocol, are to achieve the sustainable development of Central America, which entails implementing a New Regional Security Model, which is unique, comprehensive and indivisible, based on the progress made in the region’s intensive process of pacification and integration; That the countries of Central America have reaffirmed their commitment to democracy, based on a government of laws and the guarantee of basic freedoms, economic freedom, social justice, and the strengthening of a community of democratic values among the countries, which are joined together by ties of history, geography, brotherhood and cooperation; That the sustainable development of Central America can only be achieved by establishing a regional legal community that will protect, ensure and promote human rights and guarantee security under law, and will ensure peaceful relations and integration among the countries of the region; That any situations that breach the peace and affect the security of any Central American countries also affect all the countries of the region and their inhabitants; That agreement on the goals of democratic consolidation is not incompatible with recognition of the special characteristics of each country in the region, which includes the special status of those countries that have decided on the elimination or constitutional permanence of their armed forces; That in recent years, as peace and democracy have been consolidated, the countries of Central America have made important progress in attaining these goals by demobilizing and reducing military forces and budgets, separating police functions from national defense functions, eliminating compulsory military service, and where necessary, adopting policies on impunity, terrorism and drug trafficking, as well as the growing professionalism of the public security institutions, among other things;

424

chapter B

That the Central American Democratic Security Model is based on the supremacy and strengthening of civil power, the reasonable balance of forces, the security of persons and of their property, the elimination of poverty and extreme poverty, the promotion of sustainable development, the protection of the environment, the elimination of violence, corruption, impunity, terrorism, drug trafficking, and arms trafficking. Also, the Central American Security Model will increasingly devote resources to social investments; That it is essential, for attaining the goals and principles set forth herein, to continue the efforts mentioned and to adopt a model legal instrument for comprehensive achievement of all aspects of the New Democratic Security Model that will ensure the permanence of the gains made; Agree to sign this Treaty on Democratic Security in Central America, as an instrument to complement the Tegucigalpa Protocol. .



Title I

Government of Laws Article 1 The Central American Democratic Security Model is based on democracy and the strengthening of its institutions and a government of laws; on governments elected by universal, free and secret suffrage and unconditional respect for human rights in the countries of the Central American region. The Central American Democratic Security Model has its raison d’être in respect for, promotion of and safeguarding of all human rights, so that its provisions ensure the security of the Central American countries and their inhabitants, by creating conditions that permit their personal, family and social development in peace, freedom and democracy. It is based on strengthening civil power, political pluralism, economic freedom, the elimination of poverty and extreme poverty, the promotion of sustainable development, the protection of the consumer, the environment and the cultural heritage; the elimination of violence, corruption, impunity, terrorism, drug trafficking, and arms trafficking; the establishment of a reasonable balance of forces that will take into consideration the domestic situation of each country and need for cooperation among all Central American countries to ensure their security. Article 2 The Central American Democratic Security Model shall be governed by the following principles relating to this topic: a. A government of law, which includes the supremacy of the rule of law, the existence of security under the law, and the effective exercise of civil liberties;

76 SICA: Framework Treaty on Democratic Security

425

b. Strengthening and ongoing improvement of democratic institutions in each country, for mutual consolidation of them within their own sphere of action and responsibility, through a continuous and sustained process of consolidation and strengthening of civil power, limiting the role of the armed forces and of the public security forces to the authority given them constitutionally, and the promotion of a culture of peace, dialogue, understanding and tolerance based on the democratic values that the countries have in common; c. The principle of subordination of the armed forces, the police and the public security forces to constitutionally established civil authorities chosen in free, honest and pluralistic elections; and d. Maintenance of a flexible and active dialogue and mutual collaboration on security issues in the broad sense of the term in order to ensure that democracy in the region is irreversible. Article 3 To ensure the security of the individual, the Parties undertake to see to it that all actions taken by the public authorities are consistent with their legal system and fully respect international human rights instruments. Article 4 Each of the Parties shall establish and maintain at all times effective control over their military and public security forces by their constitutionally established civil authorities; shall see to it that those authorities fulfill their responsibilities within this framework and shall clearly define the doctrine, missions and functions of those forces and their obligation to act solely in this context. Article 5 Public and private corruption is a threat to democracy and the security of the people and of the countries of the Central American region. The Parties undertake to make every effort to eliminate all forms of them at all levels. In this connection, the meeting of the State comptroller entities of each Party shall assist the Security Commission in the design, establishment and implementation of regional programs and projects to modernize and harmonize ­legislative, investigative, educational and corruption preventive measures. Article 6 The Parties shall make every effort to eliminate the impunity of criminals. The Security Commission shall make contact with the institutions and officials connected with this problem in order to help develop programs to harmonize and modernize the criminal justice systems of Central America.

426

chapter B

Article 7 The Parties recognize the importance of having their public authorities, military forces and public security forces conduct their activities in accordance with the principles and recommendations in the following resolutions of the General Assembly and the United Nations: a. 40/34 Declaration on the Fundamental Principles of Justice for Victims of Crime and Abuse of Power; b. 43/173 Set of Principles for the Protection of all Persons Subjected to any kind of Detention or Imprisonment; c. 45/113 United Nations Rules for the Protection of Minors Deprived of Liberty; d. 3452 (XXX) Declaration on the Protection of all Persons against Torture and Other Cruel, Inhumane or Degrading Punishment; e. 34/169 Code of Conduct for Officials Responsible for Law Enforcement. As well as the Basic Principles on the Use of Force and Fire Arms by Officials Responsible for Enforcing the Law, adopted by the Eighth United Nations Congress on Prevention of Crime and Treatment of Delinquents. Article 8 To strengthen democracy, the Parties reaffirm their obligation to refrain from providing political, military, financial or any other support to individuals, groups, irregular forces or armed bands that threaten the unity and order of the State or that advocate the overthrow or destabilization of the democratically elected government of any other of the Parties. Moreover, they reiterate their obligation to prevent the use of their territory for organizing or conducting military actions, acts of sabotage, kidnapping or criminal activities in the territory of another country. Article 9 The Parties recognize the importance of the Treaty of Mutual Legal Assistance in Criminal Matters, signed in Guatemala City, the Republic of Guatemala, on October 29, 1993, and the special nature of any constitutional provisions and any treaties and conventions that stipulate the right of asylum or sanctuary.

76 SICA: Framework Treaty on Democratic Security



427

Title II

Security of Persons and Their Property Article 10 The Central American Democratic Security Model shall be governed by the following principles in connection with this Title: a. Democratic security is integral and indivisible. The solution of ­problems of security of persons in the region shall therefor be based on a comprehensive and interrelated view of all aspects of sustainable development in Central America, in their political, economic, social, cultural and ecological expressions; b. Democratic security is inseparable from human considerations. Respect for the essential dignity of human beings, improvement of the quality of life and the full development of human potential are required for all aspects of security; c. Supportive humanitarian aid in the event of emergencies, threats and natural disasters; and d. Poverty and extreme poverty are regarded as threats to the security of the people and to the democratic stability of Central American societies. Article 11 To contribute to the consolidation of Central America as a region of peace, freedom, democracy and development, the following objectives are established: a. To guarantee for all persons security conditions that will enable them to participate and benefit from national and regional sustainable development strategies, through the impetus of a market economy that will make economic growth with equity possible; b. Establish and strengthen mechanisms for operational coordination of the competent institutions, to make more effective at the national and regional level the struggle against crime and all threats against democratic security that require the use of military, security or police forces, such as terrorism, unlawful trafficking in arms, drug trafficking and organized crime; c. Strengthen cooperation, coordination, harmonization and convergence of policies on the security of persons, as well as border cooperation and furtherance of social and cultural ties among the peoples; and d. Promote cooperation among the countries to ensure security under law for the property of persons. Article 12 The General Secretariat of the Central American Integration System shall be in charge of organizing and managing a Central American Security Index and

428

chapter B

shall from time to time make progress reports on it to the governments concerned, through the Security Commission of Central America. Article 13 The Parties undertake to: a. Help spur regional promotion of all human rights and the culture of peace, democracy and integration among the peoples of Central America; b. Promote the contribution of the mass media in the Parties to achieving the objectives set forth in the preceding subparagraph; and c. Promote projects to integrate border development, in a spirit of ­Central American solidarity and democratic participation of the people. Article 14 The Parties undertake to promote ongoing professional training and modernization of their public security forces to enable them to conduct the broadest and most effective campaign against criminal activity and protect the rights embodied in the domestic laws of each country. Also, they undertake to put into operation the Central American Institute of Advanced Police Studies. Article 15 The Parties recognize that poverty and extreme poverty damage human dignity and are a threat to the security of the people and to the democratic stability of the societies of Central America, and to that end, they undertake to give priority to efforts to overcome the structural causes of poverty and improve the quality of life of the people. Article 16 Tailoring the national budgets to the reality in each country shall be aimed at benefitting the social sector in health, education and other fields that help to improve the quality of life of the people, particularly the most deprived classes of society. Article 17 The Parties undertake to cooperate in eradicating drug trafficking and the unlawful trade in precursors and related crimes, pursuant to international, regional and subregional agreements to which they are Parties or any agreements they have concluded on these topics, particularly the Agreement Establishing the Permanent Central American Commission for the Eradication, Production, Trafficking in, Consumption and Illicit Use of Narcotics and

76 SICA: Framework Treaty on Democratic Security

429

Psychotropic Substances. To this end, they shall set up streamlined and effective mechanisms for communication and cooperation among officials responsible for this work. Article 18 The Parties undertake to prevent and combat every kind of criminal activity having regional or international impact, without any exception, such as terrorism, sabotage, and organized crime, and to prevent by every means the planning, preparation and conduct of such activities within their territory. To that end, they shall strengthen cooperation and shall promote the exchange of information among the agencies responsible for migration control, the police and other competent officials. Article 19 The Parties shall endeavor, if they have not already done so, to initiate the necessary proceedings to approve, ratify or accede to the following international agreements: a. Convention for the Suppression of Unlawful Seizure of Aircraft, 1963; b. Convention to Prevent and Punish Acts of Terrorism Involved in Offenses Against Persons and Any Related Extortion when such crimes are of International Transcendence, 1971; c. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971; d. Convention on Prevention and Punishment of Crimes against Persons who are Internationally Protected, including Diplomatic Agents, 1973; and e. International Convention against the Taking of Hostages, 1979. Article 20 The Parties undertake to take steps to combat the activities of organized gangs trafficking in persons when such crimes are of international transcendence in the region, in order to seek comprehensive solutions to this problem. Article 21 The Parties undertake to make every effort to promote cooperation to ensure protection of the consumer, the environment, and the cultural heritage of Central America, pursuant to any international and regional agreements to which they are Parties or any they have signed on these topics, particularly the Agree­ ment  Establishing the Central American Commission on the Environment and Development. To that end, they shall establish streamlined and effective mechanisms for communication and cooperation among officials working in these areas.

430

chapter B

Article 22 The Parties recognize that for effective cooperation in these areas, it is essential, in the event this has not yet been done, to initiate the necessary proceedings to approve, ratify or accede to international and regional agreements on protection of the environment and the cultural heritage. Article 23 The Parties reaffirm their resolve to appropriately reintegrate into society refugees, displaced persons and uprooted persons who return voluntarily and peacefully to their territories, so that such persons can enjoy all of their rights and improve their quality of life on an equal footing with others, taking into consideration the domestic situation prevailing in each country. Article 24 The Parties undertake to take positions and adopt joint strategies for defending their nationals abroad who face repatriation or expulsion. Article 25 The Security Commission, based on any proposals it receives from the competent regional organs and in coordination with them, shall formulate and forward to the sectoral or intersectoral councils concerned recommendations on the following topics, among others: a. Strengthen internal controls of borders, ports, airports, air space and territorial seas to detect the following: unlawful trafficking of cultural artifacts and facilitate their recovery; unlawful trade in wood, plant and animal species; trafficking in and handling toxic wastes and hazardous substances; drug trafficking and related crimes, particularly the unlawful trade in precursors, money laundering and other activities; theft of vehicles, boats and aircraft, without affecting any regional mechanisms they may agree upon to prevent and punish such crimes; b. Define criminal activities and harmonize and modernize their laws on protecting consumers, the environment, the cultural heritage and any other topics that require such action, with a view to establishing a common standard of security; c. Conclude agreements on the topics included under this heading; and d. Promote cooperation and coordination between entities having jurisdiction and the public ministries of the Parties with a view to streamlining their activities aimed at strengthening the fight against crime. […]

76 SICA: Framework Treaty on Democratic Security



431

Title VII

Transitory Provisions Article 76 Until this Treaty enters into force, the Security Commission shall continue to operate pursuant to the mandates received from the Meeting of Presidents and any that may be received from the Council of Ministers of Foreign Affairs, and shall respect the purpose of this Treaty. Article 77 The Parties shall increase their efforts to obtain any technical and financial assistance that may help to clear mine fields in the region, pursuant to any international, regional, and subregional agreements to which they may be Party and any they may conclude on this subject. Article 78 This Treaty replaces any rules on security or defense matters contained and embodied in the Charter of the Organization of Central American States (odeca) and any additional agreements that may have been adopted at the regional level for developing it. IN WITNESS THEREOF, the undersigned sign this Treaty in seven original identical copies, in the city of San Pedro Sula, Department of Cortés, Republic of Honduras, on the fifteenth day of December nineteen hundred and ninety-five.

432 V

chapter B

Andean Community

77 Additional Protocol to the Cartagena Agreement “Andean Community Commitment to Democracy” This Protocol finished being signed by the Andean Foreign Ministers on 10 June  2000 and will enter into effect once it has been ratified by the Congresses of  Bolivia, Colombia, Ecuador, Peru, and Venezuela and the respective instruments have been deposited with the General Secretariat of the Andean Community. The Governments of Bolivia, Colombia, Ecuador, Peru, and Venezuela, Reaffirming the Cartagena Agreement, which states that the Member Countries agree to sign the Subregional Integration Agreement “Founded on principles of equality, justice, peace, solidarity, and democracy”; Stressing that the Andean Community is a community of democratic nations that have shown a sustained will to promote democratic living and the constitutional state, both in the Andean Subregion and in Latin America and Caribbean ever since the birth of their integration movement; Asserting that the aim of the Andean Community’s political action and of its common foreign policy is to develop, improve, and consolidate democracy and the constitutional state; and Ratifying the Presidential Declaration on the Andean Community Commitment to Democracy, signed in Bogota on August 7, 1998, AGREE as follows: Article 1 Democratic institutions and a constitutional state that are fully effective are essential to the political cooperation and the process of economic, social, and cultural integration carried out within the framework of the Cartagena Agreement and of other instruments of the Andean Integration System. Article 2 The provisions of this Protocol shall be applicable if the democratic order is disrupted in any of the Member Countries Article 3 In the event of developments that could be considered a disruption of the democratic order in any Member Country, the other Andean Community Member Countries shall consult with each other and, if possible, with the country involved in order to examine the nature of those developments.

77 Additional Protocol to the Cartagena Agreement

433

Article 4 If the consultations cited in the previous Article so establish it, the Council of Foreign Ministers shall be convened to ascertain whether the developments in question constitute a disruption of the democratic order, in which case appropriate measures shall be adopted for its prompt reestablishment. These measures specifically concern the relations and commitments deriving from the Andean integration process. They shall be taken in accordance with the seriousness and the evolution of political developments in the country in question and shall include: a. Suspension of the Member Country’s participation in any of the bodies of the Andean Integration System; b. Suspension of its participation in the international cooperation projects carried out by the Member Countries; c. Extension of the suspension to other System bodies, including its disqualification by Andean financial institutions from obtaining access to facilities or loans; d. Suspension of rights to which it is entitled under the Cartagena Agreement and of the right to coordinate external action in other spheres; and e. Other measures and actions that are deemed pertinent under International Law. Article 5 The measures cited in the previous article shall be adopted by the Andean Council of Foreign Ministers through a Decision, without the participation of the Member Country involved. That Decision shall become effective on the date of its approval and the country in question shall be notified immediately thereof. Article 6 Without prejudice to the foregoing, the Governments of the Member Countries shall continue to take diplomatic steps to bring about the reestablishment of democratic order in the Member Country in question. Article 7 Measures adopted pursuant to Article 4 shall cease through a Decision once the Andean Council of Foreign Ministers ascertains that democratic order has been reestablished in the Member Country in question. Article 8 The Andean Community shall seek to incorporate a democratic clause in the agreements it signs with third parties, in accordance with the criteria set out in this Protocol.

434

chapter B

Article 9 This Protocol shall enter into force when all of the Member Countries have deposited their respective instruments of ratification with the General Secretariat of the Andean Community. Done at Oporto, Portugal on the twenty-seventh of October of nineteen ninety-eight, in five original copies, all equally authentic.

78 Declaration about Democracy and Integration

78

435

Declaration about Democracy and Integration

Adopted by the Andean Presidential Council, Santafe de Bogota (Colombia), 7 August 1998 The Presidents of Bolivia, Colombia, Ecuador and Venezuela, and the First Vice President of Peru, having met in Santafe de Bogota, on the occasion of the inauguration of President Andres Pastrana Arango, celebrated the victory of Colombia’s democracy, an unequivocal expression of the Colombian people’s vocation to peace, that sets a new milestone in the political development of that Nation. They also expressed their profound satisfaction at the successful democratic process protagonized by the Ecuadorian people, which culminated in the election of Jamil Mahuad Witt to the Presidency of the Republic. The validity of democracy in Latin American is strengthened with these experiences of the countries of the Andean Community, which have assumed democracy as an indispensable condition for the stability, peace and development of the subregion. The Presidents considered this opportunity appropriate to give testimony to their commitment to democracy, in the conviction that its consolidation will contribute to secure an effective and growing citizen participation in all the aspects of political, economic and social life. By initiative of President Andres Pastrana and under his Chairmanship, they met as the Andean Presidential Council in order to sign the following: Andean Community Commitment to Democracy 1. The Andean Community is a community of democratic nations. The full validity of democracy has been an essential condition for political dialogue and cooperation, foundations of the economic, social and cultural integration process within the framework of the Agreement of Cartagena and the other instruments that make up the Andean Integration System. 2. The Andean Community has among its main objectives the development and consolidation of democracy and the Rule of Law, as well as the respect for human rights and fundamental freedoms. 3. Based on the foregoing, they agree to: Instruct the Andean Council of Ministers of Foreign Affairs to prepare, before the end of the year, a draft of an Additional Protocol to the Agreement of Cartagena, that establishes measures to be adopted by the countries upon an eventual rupture of the democratic order in a Member Country.

436

chapter B

Advances for Integration At the same time, they adopted the following Guidelines: 1. Instruct the Andean Council of Ministers of Foreign Affairs to, as soon as possible, establish a Community foreign policy agenda and define the fundamental elements of a strategy that secures the Andean Community’s effective participation and projection in new international settings. These tasks shall be presented for consideration by the XI Andean Presidential Council. 2. Instruct the Andean Council of Ministers of Foreign Affairs that, in furtherance of Decision 435 that created the Andean Committee of Environmental Government Agencies, and in coordination with the General Secretariat, begin drafting a Community strategy about sustainable development, in order to deepen Andean integration and meet the objectives of a balanced economic, social and environmental development. Finally, the Presidents of the Andean Community congratulated themselves for the progress made in the negotiations with Mercosur and reiterated their desire that these conclude successfully and that they therefore contribute, in a positive manner, to the Latin American and Hemispheric integration process.

79 Declaration of Machu Pichu

437

79 Declaration of Machu Pichu on Democracy, the Rights of Indigenous Peoples and the Fight against Poverty – Excerpts Adopted by the Andean Presidential Council, Lima – Machu Picchu (Peru), 28 to 29 July 2001 We, the Presidents of the member states of the Andean Community, in the presence of the Presidents of Argentina, Brazil, Chile, Costa Rica, Panama, Paraguay, the Dominican Republic, and Uruguay, the Prince of Asturias, and the Secretary General of the Andean Community, meeting on the occasion of the swearing-in of Dr. Alejandro Toledo as President of Peru, have adopted the following DECLARATION OF MACHU PICCHU ON DEMOCRACY, THE RIGHTS OF INDIGENOUS PEOPLES, AND THE FIGHT AGAINST POVERTY Bearing in mind that our political systems are based on democracy, respect for human rights; and fundamental freedoms; Mindful that democracy, human rights, peace, social development, and the fight against poverty are interrelated concepts with each implying the others; Considering that the variety of cultures and ethnic groups in our nations has been a key factor in forging nationalities and the historical identity of our countries; and that today, as in the past, it continues to be an essential feature of the human and social wealth of our societies; Aware of the poverty and extreme poverty endured by most indigenous peoples, and of the need to guarantee and promote their rights, including the right to diversity; Considering the determination of our governments to channel resources to social and economic development, and, in particular, to the fight against poverty and extreme poverty and to the task of generating decent, productive employment; and Considering that all efforts to achieve Latin American integration share a common desire to establish mechanisms for political cooperation, to combat poverty, and deregulate trade, DECIDE: To advance the defense of democracy and observance of human rights 1. To express our firm conviction that democracy, development, and observance of human rights and fundamental freedoms are interdependent and mutually reinforcing. Accordingly, we reiterate our resolve to strengthen democracy as a system of government and as an irreplaceable component of our political identity, to promote democratic values as a way of life, and to

438

chapter B

defend democratic institutions and the rule of law in Latin America and the Caribbean. We also reaffirm that the effective exercise of democracy presupposes strengthening citizen participation. 2. To reiterate our decision to adopt an Inter-American Democratic Charter during the special session of the oas General Assembly to be held in Lima in September, as an instrument destined to contribute to the promotion, stability, preservation, and defense of democratic institutions. 3. To renew our governments’ commitment to the effective exercise and observance of human rights, as well as our resolve to strengthen the inter-American system of human rights, possibly by gradually introducing permanent sessions of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, and to foster universal adoption of the interAmerican system to safeguard human rights. 4. We, the presidents of the Andean countries, pursuant to the Act of Carabobo adopted on the occasion of the Thirteenth Andean Presidential Council, instruct our ministers of foreign affairs to draft the text of the Andean Charter of Human Rights for presentation to the next meeting of the Andean Presidential Council. Said Charter shall contain the principles and central elements of a community policy in this field, including issues such as the rights of women and of indigenous peoples. 5. We, the Andean presidents, hereby decide to instruct our ministers of foreign affairs to prepare a proposal designed to strengthen programs for the promotion of democracy and of citizen participation in all its manifestations; to prepare, propose, and execute activities educating people in democratic values; exchange experiences among political parties in the subregion; and develop policies to promote and disseminate democratic values in line with existing national policies. The Rights of Indigenous Peoples 6. We consider that the cultural and ethnic diversity characteristic of our nations is a source of great wealth and a bond uniting our societies. Practicing democracy in our peoples entails respecting and fostering diversity. Accordingly, we state our intention to continue devising strategies and policies designed to underscore the value of the ethnical plurality and multicultural nature of our nations, in order to promote full participation by indigenous peoples and ethnic minorities. […] 9. Consolidating democracy and the rule of law in our countries presupposes policies to ensure the active participation of indigenous peoples in every aspect of national life. To that end, the ministers of foreign affairs shall propose

79 Declaration of Machu Pichu

439

the establishment of a round table on the rights of indigenous peoples in the institutional framework of the Andean Community of Nations, with the participation of indigenous organizations, human rights organizations, civil society, and representatives of each of the member states, with a view to integrating indigenous peoples fully in the economic, social, and political life of our countries, while at the same time respecting and promoting their cultural diversity. The round table will meet at the earliest possible opportunity in Cuzco. An Alliance in the Fight against Poverty 10. Sensitive to the fact that genuine and full democracy is a prerequisite for an effective war on poverty, we the heads of state reiterate our decision to take actions to reduce poverty by 50 percent by the year 2015. 11. Social justice is an essential ingredient in democracy and a necessary condition for guaranteeing the political stability and legitimacy of our governments. We are therefore committed to achieving economic growth with social equity to overcome inequalities, poverty, and the challenges that our societies endure. 12. We affirm our resolve to strengthen political cooperation in the subregional integration process, and thereby to attach special priority to the social agenda. 13. We believe that good governance and efficient and transparent administration, accompanied by mechanisms for citizen participation, are essential features of a proper use of resources geared to overcoming social inequality. 14. Aware that corruption erodes democratic stability and impairs the struggle against poverty, we reiterate the need to increase actions designed to combat corruption and to cooperate in as many joint activities as may be necessary pursuant to international law and regional agreements on this subject. 15. We welcome the agreements reached by the Group of 8 in Genoa and urge that they be implemented effectively, especially with respect to external debt relief and the fight against poverty and extreme poverty. 16. We point, in this connection, to the advisability of reaching agreements, in particular, regarding increases in the amounts of cooperation grants under the policies set by international financial organizations and the governments of the industrialized countries, along with an increase in the volume of project financing in critical areas of the fight against poverty. We attach special priority to debt for development project swaps for the most vulnerable segments in our societies. 17. We state our firm resolve to adopt a new common external tariff before the next Andean Presidential Meeting. That, combined with fulfillment of our commitments in respect of the free movement of persons, an Andean passport, and border integration and development will ensure that the Andean Common Market will be established in 2005.

440

chapter B

18. Pursuant to the agreements reached at the Carabobo Summit and with a view to advancing the social agenda and inducing all sectors of society to participate in the fight against poverty and to generate employment, we the presidents of the Andean Community instruct the ministers of foreign affairs to draw up a proposal for the establishment of a round table on consensus-­ building in society, within the framework of the Andean forum approved at the Carabobo Summit, aimed at expanding in-depth citizen participation in the integration processes. The round table will yield ideas for the design of an “Integrated Plan for Andean Social Development.” We Presidents of the Andean Community congratulate Dr. Alejandro Toledo on his election as the Constitutional President of the Republic of Peru, and for the leading role he played, from the ranks of civil society, in restoring democratic institutions in Peru. We pay tribute, too, to President Valentín Paniagua and his government for having held free and fair elections and for the outstanding part he played in consolidating democracy in Peru and in restoring the effective exercise of human rights and fundamental freedoms.

80 ANDEAN CHARTER: PROMOTION AND PROTECTION OF HUMAN RIGHTS 441

80 Andean Charter for the Promotion and Protection of Human Rights – Excerpts Adopted by the Andean Presidential Council, Guayaquil (Ecuador), 26 July 2002 The Presidents of Bolivia, Colombia, Ecuador, Peru and Venezuela, meeting as the Andean Presidential Council and on behalf of the peoples of the Andean Community, Drawing inspiration from the thought of The Liberator Simón Bolívar, who in his Address to the Constituent Congress of Bolivia proclaimed that it is the prime desire of all peoples to attain possession of their rights, exercise political virtues and facilitate to each person the acquisition of the luminous talents and enjoyment that belonging to the human race essentially entails; Convinced that human rights are inherent to all human beings, who are all free and equal in dignity and rights; Considering that the internal legal order of the States and International Law on Human Rights must protect human rights permanently and complementarily; Committed to the respect and application of the Charter of the United Nations, the Charter of the Organization of American States, the American Convention on Human Rights – Pact of San José -, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Additional Protocol to the American Convention on  Human Rights in the area of Economic, Social and Cultural Rights – Protocol of San Salvador -, the Inter-American Democratic Charter and other international instruments on human rights to which the Andean nations are State Parties; Engaged in the defense of the objectives and principles set forth in the Universal Declaration of Human Rights, the American Declaration on the Rights and Duties of Man and the United Nations Declaration on the Right to the Development; Recognizing the contribution of the Andean Parliament and, in particular, the principles set forth in the Andean Social Charter adopted on September 30, 1994; Committed to the development of the increasingly dynamic role played in today’s world by the Andean Community, a conglomerate of peoples united by the conscience of a common past and geography and as a brotherhood in search of historical targets that affirm and project the roots and traditions characteristic of their identity; Decided to consolidate and promote Andean unity based on the recognition of the diversity of their territories, peoples, ethnic groups and cultures, and with the firm belief that democracy, development and the respect of

442

chapter B

human rights and fundamental freedoms are interdependent and mutually reinforcing; Bearing in mind the recommendations of the Andean Subregional Seminar «Democracy and Human Rights», held in Quito in August 2000, related to the drafting of an Andean Charter for the Promotion and Protection of Human Rights and cooperation to strengthen the observance of human rights in the Andean region; Taking note of the valuable contributions derived from the consultation process carried out to prepare this Charter with Andean Community bodies – in particular those received from the Court of Justice of the Andean Community and the Andean Labor Council – and representatives of civil society in the five Andean countries; Determined to contribute towards advancing world solidarity and respect for human diversity based on the promotion and protection of human rights, and to promote the political, economic and social development of their countries, having as a focus and ultimate goal the welfare of the human being; In compliance with the mandates of the Act of Carabobo, of June 24, 2001 and of the Declaration of Machu Picchu on democracy, the rights of indigenous peoples and the fight against poverty, of July 29, 2001, through which the Presidents of the Andean countries entrusted the Andean Council of Ministers of Foreign Affairs the preparation of a draft Andean Charter for the Protection and Promotion of Human Rights containing the principles and substantive issues of community policy on the subject; Decided to jointly proclaim the principles, objectives and commitments of the Andean Community regarding the promotion and protection of human rights; Sign this ANDEAN CHARTER FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS

Section I General Principles

Article 1 The Member States of the Andean Community recognize that human rights are inherent to the nature and dignity of everyone. Article 2 They recognize that all human rights must be enforceable and reaffirm their commitment to respect and command respect for human rights and the ­fundamental freedoms set forth in international instruments and in national legislations, and to adopt the necessary legal and administrative measures to prevent and investigate actions that may constitute violations of human rights,

80 ANDEAN CHARTER: PROMOTION AND PROTECTION OF HUMAN RIGHTS 443

to ensure the effectiveness of constitutional and legal remedies, to try and punish those responsible for the violations and to grant full relief to the victims, according to law. Article 3 They affirm the principle that all human rights and fundamental freedoms are universal, indivisible, interdependent and interconnected and that, consequently, the application, promotion and protection of civil and political rights as well as economic, social and cultural rights and the right to development must receive equal and decisive attention. Article 4 Within the framework of respect for Human Rights, they reiterate the obligation and commitment of subregional states towards the preservation, protection and defense of democracy, as established among other instruments in the Riobamba Charter of Conduct, the Additional Protocol to the Cartagena Agreement “Commitment of the Andean Community to Democracy” and the Inter-American Democratic Charter. Article 5 They reiterate the will of the Andean Community Member States to accept the decisions of the Inter-American Human Rights Court. Furthermore, to take a constructive attitude to favorably accept the decisions and recommendations of regional and global non- jurisdictional mechanisms, when applicable, pursuant to relevant human rights treaties and constitutional provisions. Article 6 They ratify their commitment to promote conditions favorable to universal observance and strengthening of systems for the protection of human rights, through signature, ratification and/or accession to international human rights instruments, and harmonization between national legislations and international rules on the subject of human rights. Article 7 They emphasize the need to promote the participation of civil society in the preparation and execution of Member States’ national action plans and programs in favor of the observance of human rights. Article 8 They declare that every person, whether a national or a foreigner, found within the territory of the Andean Community Member States is entitled to all human

444

chapter B

rights and fundamental freedoms set forth in International Law on Human Rights and in pertinent national legislation. Article 9 They recognize the right of everyone to file accusations, complaints or petitions concerning violations of human rights and fundamental freedoms before judicial organs, Ombudsmen and/or pertinent administrative echelons, and to be heard under the terms provided for in national legislations; furthermore, they reaffirm their commitment to support judicial organs and Ombudsmen within the sphere of their jurisdiction. Section II Discrimination and Intolerance Article 10 They reaffirm their decision to combat all forms of racism, discrimination, xenophobia and any kind of intolerance or exclusion against individuals or communities on account of race, color, sex, age, language, religion, public opinion, nationality, sexual orientation, immigration status or any other condition, and, decide to promote national legislations that punish racial discrimination. Article 11 They shall strengthen educational plans and programs on human rights in order to promote a social culture based on tolerance, the respect of differences and non- discrimination. Article 12 They agree to undertake the necessary actions to ensure the protection of the human rights of minorities and to combat all acts of discrimination, exclusion or xenophobia directed against, and affecting, them. Section III Democracy and Human Rights Article 13 The Andean peoples have a right to democracy and their governments have the obligation to promote and defend it, in order to achieve full exercise of all civil and political rights, economic, social and cultural rights, and the right to development. Article 14 They reiterate their commitment to the contents of the Inter-American Democratic Charter and of Resolution 2002/46 of the United Nations Commission on Human Rights on “New measures to promote and consolidate democracy”, especially regarding the essential elements of democracy: respect for human

80 ANDEAN CHARTER: PROMOTION AND PROTECTION OF HUMAN RIGHTS 445

rights and fundamental freedoms, freedom of association, freedom of expression, of opinion, of access to and the exercise of power in accordance with the rule of law; the holding of periodic free, fair and impartial elections based on universal suffrage and secret balloting as an expression of the will of the population; a pluralistic system of political organizations and parties; the permanent, ethical and responsible participation of citizens in the political life of their countries; the separation and independence of powers; the transparency and accountability of public administration, and a free, independent and pluralistic press. Article 15 They confirm their accession to the Commitment of the Andean Community to Democracy, signed in Porto in 1998, which is meant to become the Andean democratic clause. Article 16 They commit themselves to uphold democratic order in the Andean region, convinced that the observance of democratic values ensures the interdependency and mutual reinforcement between democracy, development and the respect for human rights and fundamental freedoms. Article 17 They reiterate their commitment to the Inter-American Democratic Charter (2001), affirm that the observance of democratic order is an indispensable guarantee for the effective exercise of human rights and fundamental freedoms and, consequently, undertake to adopt all possible measures to strengthen it. Article 18 They recognize the right of every citizen, man or woman, of the Andean Community Member States to elect and participate in the elections of the Andean Parliament, which shall be held through free, direct and secret universal suffrage. […] Section XV Final Provision Article 96 They instruct their Ministers of Foreign Affairs, given the dynamics of the evolution of International Law on Human Rights, to review every four years the contents of this Charter to the effect of updating and improving it. The Andean Council of Ministers of Foreign Affairs shall decide in due time upon the binding nature of this Charter.

446 VI

chapter B

Union of South American Nations

81 Additional Protocol to the Constitutive Treaty of the Union of South American Nations on Commitment to Democracy Adopted in Georgetown (Guyana), 26 November 2010 The Republic of Argentina, the Plurinational State of Bolivia, the Federative Republic of Brazil, the Republic of Chile, the Republic of Colombia, the Republic of Ecuador, the Cooperative Republic of Guyana, the Republic of Paraguay, the Republic of Peru, the Republic of Suriname, the Oriental Republic of Uruguay and the Bolivarian Republic of Venezuela. Considering that the Constitutive Treaty of the Union of South American Nations provides that the full validity of democratic institutions and unwavering respect for human rights are conditions that are essential for building a common future of peace and economic and social prosperity and for developing integration processes among Member States. Underscoring the importance of the Declaration of Buenos Aires of  October 1, 2010 and the regional instruments that affirm democratic commitment. Reiterating our commitment to the promotion, defence and protection of democratic order, Rule of Law and its institutions, Human Rights and fundamental freedoms, as essential and indispensable conditions for the development of their integration process and a vital requirement for their participation in unasur. AGREE: Article 1 This Protocol shall apply in the event of a breach or threat of breach against the democratic order, a violation of the constitutional order or any situation that jeopardises the legitimate exercising of power and the application of the values and principles of democracy. Article 2 When one of the situations presented in the previous article arises, the Council of Heads of State and Government or, in its absence, the Council of Ministers of Foreign Affairs shall meet – in an extraordinary session – convened by the Pro Tempore Presidency: ex officio, at the behest of the affected State or at the request of another UNASUR Member State.

81 ADDITIONAL PROTOCOL ON COMMITMENT TO DEMOCRACY

447

Article 3 The Council of Heads of State and Government or, in its absence, Council of Ministers of Foreign Affairs, meeting in an extraordinary session, shall consider by consensus, the nature and scope of the measures to be applied, taking into account the relevant information gathered based on the provisions of article 4 of this Protocol and respecting the sovereignty and territorial integrity of the affected State. Article 4 The Council of Heads of State and Government or, in its absence, the Council of Ministers of Foreign Affairs may establish, in the event of a breach or threat of breach against the democratic order, the measures outlined below, for the purpose of re-establishing the democratic institutional political process. Said measures shall enter into force on the date on which the respective decision is adopted. a. Suspension of the right to participate in the various bodies and branches of unasur, as well as the suspension of the rights and benefits enjoyed under the Constitutive Treaty of unasur. b. Partial or complete closure of land borders, including the suspension and/or limitation of trade, air and maritime traffic, communications and provision of energy, services and supplies. c. Advocate the suspension of the affected State in the ambit of other regional and international organisations. d. Promote, with third countries and/or regional blocs, the suspension of the rights and/or benefits enjoyed by the affected State under the co-operation agreements to which it is party. e. Adoption of additional political and diplomatic sanctions. Article 5 Together with the adoption of the measures defined in article 4, the Council of Heads of State and Government, or in its absence, the Council of Ministers of Foreign Affairs shall use its good offices and take diplomatic steps to promote the restoration of democracy in the affected country. Said actions shall be carried out in coordination with those undertaken in applying other international instruments pertaining to the defence of democracy. Article 6 When the constitutional government of a Member State believes that there is a threat of breach against or change in the democratic order that would

448

chapter B

severely affect it, it may consult the Council of Heads of State and Government or the Council of Ministers of Foreign Affairs, through the Pro Tempore Presidency and/or the General Secretariat, in order to notify them of the situation and request concrete concerted co-operation and a pronouncement from unasur to defend and preserve its democratic institutionality. Article 7 The measures provided in article 4 that are applied to the affected Member State, shall cease from the date on which said State is notified of the agreement reached by the States that adopted such measures, once it has been confirmed that the constitutional democratic order has been completely restored. Article 8 This Protocol is an integral part of the Constitutive Treaty of unasur. This Protocol shall enter into force thirty days after the date of receipt of its ninth instrument of ratification. Instruments of ratification shall be deposited with the Government of the Republic of Ecuador, which shall notify the other Member States of the date of deposit, as well as the date of entry into force of this Protocol. For the Member State that ratifies this Protocol after the ninth instrument of ratification has been deposited, said Protocol shall enter into force thirty days after the date on which that Member State deposited its instrument of ratification. Article 9 This Protocol shall be registered with the Secretariat of the United Nations.

chapter c

Arab Region and Asia Introduction The picture in the Arab world and in Asia is completely different from the situation in Africa, the Americas and also in Europe. Concerning the Arab world there are, in fact, hardly any documents that directly deal with democracy. Even the “Arab Spring” or the so-called “Arabellion” – a revolutionary wave that commenced in December 2010 – did not change this situation. This overall assessment notwithstanding, the “Arab Charter on Human Rights” (→ Doc. 83) guarantees certain elementary rights of political participation. For instance it provides that every citizen has the right to freely pursue a political activity and to stand for election or choose his representatives in free and impartial elections (Article 24). The Arab Charter on Human Rights was adopted by the Council of the League of Arab States on 22 May 2004 and entered into force on 15 March 2008. However, it should be mentioned that the Inter-American Democratic Charter of 2001 has to some extent served as a source of inspiration. In fact, some Arab leaders expressed their hope to create an Inter-Arab Democratic Charter. A concrete proposal for such a charter came from Yemen in 2005. However, this idea has not been followed up on. Even the “Arab Spring” could not revitalise it, which is why it still remains a concept for the future. It should be noted, however, that the rather limited number of democracy documents from the Arab region is to some extent compensated by the fact that about a third of the Arab countries belong to the African Union. For these countries, the rather elaborate standards of that organization are applicable. The situation in Asia is only slightly different from that of the Arab world. The most important Asian document is the “saarc Charter of Democracy” of February 2011 (→ Doc. 84). The South Asian Association for Regional Cooperation (saarc) is a political and economic international organization of eight countries that was formed on 8 December 1985. The secretariat of the organization is headquartered in Kathmandu, Nepal. The idea of a Charter of Democracy was brought forward by Sheikh Hasina, the Prime Minister of Bangladesh. The central aim of the Charter is to set a clear commitment of all South Asian nations to democracy and to express a univocal renouncement of “any unconstitutional change of an elected government in a Member State”. In this way, the Charter stresses the paramount importance of stable democratic governments in an increasingly fragile neighbourhood. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_012

450

chapter c

The “asean Human Rights Declaration” (→ Doc. 85), which was unanimously adopted by the members of the organization at their November 2012 meeting in Phnom Penh, also deserves mentioning. The Association of Southeast Asian Nations (asean) was established on 8 August 1967 in Bangkok, Thailand. It is a political and economic organization of currently ten countries and is headquartered in Jakarta, Indonesia. It is important to remember, however, that the declaration fails to include fundamental rights and freedoms relevant for democracy. For example the Charter does not guarantee freedom of association. This weakness is well reflected in a news release of the former un High Commissioner for Human Rights, Navanethem Pillay, who, while welcoming “the renewed commitment by leaders of the Association of Southeast Asian Nations (asean) to universal human rights norms” expressed concern that the Charter “is not consistent with international standards”. The assessment by the un High Commissioner is only changed marginally by the Phnom Penh Statement on the Adoption of the asean Human Rights Declaration which reaffirms in its first preamble consideration: “asean’s commitment to the promotion and protection of human rights and fundamental freedoms […], including the principles of democracy, rule of law and good governance.” The same applies for paragraph 3 which reaffirms “further our commitment to ensure that the implementation of the ahrd be in accordance with our commitment to […] the Universal Declaration of Human Rights, the Vienna Declaration and Program of Action, and other international human rights instruments to which asean Member States are parties […].” This indirect reference to democratic principles as set out in other international documents underlines at the same time the importance as well as the complexity of the debate about democracy in Asia.

On the democracy documents in the Arab region and in Asia, see Darryl R. J. Macer/Souria Saad-Zoy, Asian-Arab philosophical dialogues on globalization, democracy and human rights, Bangkok 2010; David Shomar, Democracy and the Arab world, in: Syracuse journal of international law and commerce 33 (2005), p. 71–78; Alan Richards, Democracy in the Arab Region: Getting There from Here, in: Middle East policy 12 (2005) 2, p. 28–35; Lal N. Sharma, Democracy and development in South Asia, in: The Indian journal of public administration 55 (2009), p. 867–881; Gordon Crawford, Promoting Democracy in Central Asia: What’s Needed and Why It Won’t Happen, in: Sicherheit und Frieden 25 (2007), p. 133–138.

82 Sana’a Declaration

451

82 Sana’a Declaration on Democracy, Human Rights and the Role of the International Criminal Court Adopted by the Inter-Governmental Regional Conference on Democracy, Human Rights and the Role of the International Criminal Court, Sana’a (Yemen), 10 to 12 January 2004 At the conclusion of the Sana’a Inter-Governmental Regional Conference on Democracy, Human Rights and the Role of the International Criminal Court formed by Governmental and Parliamentary Delegations from all the Arab and neighbouring African and Asian countries, organised by the Government of Yemen and the non-governmental organisation No Peace Without Justice, with the participation of 820 participants from 52 countries and representatives from regional and international organisations, as well as representatives of civil society and political parties. The Conference represented a forum for bringing together representatives of governments, parliaments and legislative bodies to talk about issues related to Democracy and Human Rights issues, the role of civil society, the rule of law and the International Criminal Court, in an open dialogue that is furthering democracy and protecting human rights in the Arab and surrounding countries and underlining achievements in the region in those areas, which is emerging from their social and cultural realities and their heritage and political practice. During two days of fruitful and profound discussion between participants on those topics, as an inseparable element to reach a consensus of understanding towards questions of the rule of law, democracy and human rights and a common endeavour to reach a common understanding of their dimensions, their interdependency and their repercussions. Delegations hereby declare they have reached the following principles: 1. Democracy and human rights, which have their origins in faith and culture, are interdependent and inseparable; 2. Cultural and religious diversity is at the core of universally recognised human rights, which should be observed in a spirit of understanding in the ­application of democratic and human rights principles; this diversity should not be a source of confrontation or clashes but should be a source of dialogue and building bridges of understanding between religions and­ cultures;

452

chapter c

3. Democratic systems protect the rights and interests of everybody without discrimination, especially the rights and interests of disadvantaged and ­vulnerable groups; 4. Democracy is achieved not only through institutions and laws but also through the actual practice of democratic principles, which should be measured by the degree to which these principles, norms, standards and values are actually implemented and the extent to which they advance the realisation of human rights; 5. The basics of democratic systems is reflected in periodically elected legislatures, representing the citizens in a fair way and ensuring their full participation, in executive bodies that are responsible and committed to principles of good governance and in an independent judiciary that guarantees fair trial rights and protects the rights and freedoms of the people; these principles are the guarantors of good governance, which ensures the protection of human rights; 6. Efforts to ensure a forum for discussion and dialogue must be encouraged in  order to exchange ideas, experiences and expertise and to promote participation and political and democratic development among participating ­countries; 7. The practice of democracy and human rights and enhancing their understanding require overcoming potential threats to the form and substance of democracy, including foreign occupation, imbalances in participation in the international justice system, the concentration and abuse of power, ineffective and unaccountable civil service, poverty, inadequate education, corruption, crimes under international law and discrimination; 8. The effective application of the rule of law is vital to protect democracy and human rights and is the foundation for judicial independence and the application of the separation of powers; 9. A free and independent media is essential for the promotion and protection of democracy and human rights. Pluralism in the media and its privatisation are vital for contributing to the dissemination of human rights information, facilitating informed public participation, promoting tolerance and contributing to governmental accountability. The media should contribute effectively and responsibly towards the strengthening of democracy and human rights knowledge; 10. Proper democratic governance and respect for human rights require a freely functioning, well-organised, vibrant and responsible civil society and a legal framework within which civil society can operate in a spirit of partnership and participation; Civil society should play its role responsibly within the framework of law and the principles of human rights and democracy;

82 Sana’a Declaration

453

11. The private sector is a vital partner in strengthening the foundations of democracy and human rights; It has a responsibility to work with governments and civil society to enhance progress; 12. The developments in international relations, the increasing international interest in issues of human rights and the rule of law and the serious efforts to stop violations of international law require strong international judicial institutions to prosecute those who commit crimes under international law, in full respect for fundamental fair trial guarantees and the rights of the accused. The participants therefore agree to: 1. Work seriously in order to fulfil the above-stated principles; 2. Strengthen and protect human rights, including people’s fundamental rights to express their views and adhere to their religious beliefs and ethnic identity; 3. Occupation is contrary to international law and basic human rights; there should be an end to the occupation of Arab territories and all holy Islamic and Christian sites as well as an end to all violations of human rights, in particular in Palestine, and the civil and political rights of the Palestinian people should be ensured, including their right to self-­ determination and their right of return according to international resolutions; 4. Empower the role of women and their participation, protecting women from all forms of exploitation and any reduction of women’s rights; 5. The establishment of an independent and fair judiciary and the separation of powers; 6. Ensure equality before the law, equal protection under the law and fundamental fair trial guarantees; 7. Support efforts towards sustainable development, which is necessary for the building and strengthening of democracy, including democratic institutions within the State, and for promoting and protecting human rights; 8. Strengthen the role of international judicial institutions, as an important element towards promoting respect for international law and human rights law, including the International Criminal Court; 9. Strengthen democracy and pluralism and the establishment of elected legislative bodies to represent popular will and ensuring the fair representation of all sectors of society; 10. Work towards future modalities of democratic consultation and cooperation among themselves, including civil society, and the e­ stablishment

454

chapter c

of an Arab Democratic Dialogue Forum as an instrument for the promotion of dialogue between diverse actors, for strengthening democracy, human rights and civil liberties, especially freedom of opinion and expression, and strengthening the partnership between public ­authorities and civil society.

83 Arab Charter on Human Rights

83

455

Arab Charter on Human Rights – Excerpts

Adopted by the League of Arab States, 22 May 2004 (entered into force 15 March 2008) Based on the faith of the Arab nation in the dignity of the human person whom God has exalted ever since the beginning of creation and in the fact that the Arab homeland is the cradle of religions and civilizations whose lofty human values affirm the human right to a decent life based on freedom, justice and equality, In furtherance of the eternal principles of fraternity, equality and tolerance among human beings consecrated by the noble Islamic religion and the other divinely-revealed religions, Being proud of the humanitarian values and principles that the Arab nation has established throughout its long history, which have played a major role in spreading knowledge between East and West, so making the region a point of reference for the whole world and a destination for seekers of knowledge and wisdom, Believing in the unity of the Arab nation, which struggles for its freedom and defends the right of nations to self-determination, to the preservation of their wealth and to development; believing in the sovereignty of the law and its contribution to the protection of universal and interrelated human rights and convinced that the human person’s enjoyment of freedom, justice and equality of opportunity is a fundamental measure of the value of any society, Rejecting all forms of racism and Zionism, which constitute a violation of human rights and a threat to international peace and security, recognizing the close link that exists between human rights and international peace and security, reaffirming the principles of the Charter of the United Nations, the Universal Declaration of Human Rights and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and having regard to the Cairo Declaration on Human Rights in Islam, The States parties to the Charter have agreed as follows: […] Article 24 Every citizen has the right: 1. To freely pursue a political activity. 2. To take part in the conduct of public affairs, directly or through freely chosen representatives.

456

chapter c

3. To stand for election or choose his representatives in free and impartial elections, in conditions of equality among all citizens that guarantee the free expression of his will. 4. To the opportunity to gain access, on an equal footing with others, to public office in his country in accordance with the principle of equality of opportunity. 5. To freely form and join associations with others. 6. To freedom of association and peaceful assembly. 7. No restrictions may be placed on the exercise of these rights other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public health or morals or the protection of the rights and freedoms of others.

84 saarc Charter of Democracy

84

457

saarc Charter of Democracy

Doc. SAARC/CM.33/SC.38/10, Annex-III, 8 February 2011; the Charter is not yet f­ ormally adopted by the SAARC Inspired by the common objectives of all South Asian States to promote the welfare of their peoples, to provide all individuals with the opportunity to live in dignity, and to realise their full potentials as enshrined in the saarc Charter; Also inspired by the general objectives of all South Asian States to promote peace, freedom and social justice; Further inspired by their shared commitment to the rule of law, liberty and equal rights of all citizens; Reaffirming faith in fundamental human rights and in the dignity of the human person as enunciated in the Universal Declaration of Human Rights and as enshrined in the respective Constitutions of the saarc Member States; Recognizing that inclusive policies, including constitutional protection developed in keeping with the wishes of the people, are essential for developing trust and understanding between and among communities; Affirming that broad-based participation of people in institutions and processes of governance creates ownership and promotes stability; Convinced that economic growth and social development based on justice and equity and democracy are interdependent and mutually reinforcing; Reaffirming that the pursuit of inclusion, good governance, and poverty alleviation, especially the elimination of extreme poverty, are essential to the promotion and consolidation of democracy; Aware that tolerance and diversity are critical in creating effective foundations for a pluralistic democratic society; and Convinced that undemocratic and unrepresentative governments weaken national institutions, undermine the Constitution and the rule of law and threaten social cohesion and stability in the long-run. The Member States of the South Asian Association for Regional Cooperation (saarc), in the spirit of consolidating democracy in South Asia, hereby commit to: – Reaffirm the sovereignty of each Member State; – Ensure the supremacy of their respective Constitutions and uphold their spirit; – Continue to strengthen democratic institutions and reinforce democratic practices, including through effective coordination as well as checks and ­balances among the Legislature, the Executive and the Judiciary as reflected in the respective Constitutions;

458

chapter c

– Guarantee the independence of the Judiciary and primacy of the rule of law, and ensure that the processes of appointments to the Judiciary as well as the Executive are fair and transparent; – Adhere to the un Charter and other international instruments to which Member States are parties; – Recognise the role of political parties and the civil society in a democracy; and – Renounce unequivocally any unconstitutional change of an elected government in a Member State; Accordingly, Member States undertake to: – Reinforce the linkage of development and democracy; – Promote sustainable development and alleviation of poverty through good governance, equitable and participatory processes; – Promote democracy at all levels of the Government and the society at large; – Strengthen democratic institutions and processes in all national endeavors with due focus on decentralisation and devolution; – Promote equality of opportunity, equality of access and equality of treatment at the national level, in keeping with the respective constitutional provisions, as safeguards against social injustices and stratification; – Inculcate democratic values in society through education and awareness building; – Ensure gender mainstreaming in government and society; – Uphold participatory democracy characterised by free, fair and credible elections, and elected legislatures and local bodies; – Encourage all democratic forces in South Asia, including elected representatives of the people, to unite against any unconstitutional change in government in any South Asian country, and work towards the restoration of democracy in keeping with the saarc Charter; and – Promote adherence to these decisions and fulfillment of this Charter, if necessary through an institutional mechanism.

85 asean Human Rights Declaration

85

459

asean Human Rights Declaration – Excerpts

Adopted by the Heads of State of the Member States of the Association of Southeast Asian Nations on the 21st asean Summit, Phnom Penh (Cambodia), 18 November 2012 We, the Heads of State/Government of the Member States of the Association of Southeast Asian Nations (hereinafter referred to as “asean”), namely Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam, on the occasion of the 21st asean Summit in Phnom Penh, Cambodia. Reaffirming our adherence to the purposes and principles of asean as enshrined in the asean Charter, in particular the respect for and promotion and protection of human rights and fundamental freedoms, as well as the principles of democracy, the rule of law and good governance; Reaffirming further our commitment to the Universal Declaration of Human Rights, the Charter of the United Nations, the Vienna Declaration and Programme of Action, and other international human rights instruments to which asean Member States are parties; Reaffirming also the importance of asean’s efforts in promoting human rights, including the Declaration of the Advancement of Women in the asean Region and the Declaration on the Elimination of Violence against Women in the asean Region; Convinced that this Declaration will help establish a framework for human rights cooperation in the region and contribute to the asean community building process; HEREBY DECLARE AS FOLLOWS: General Principles 1. All persons are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of humanity. 2. Every person is entitled to the rights and freedoms set forth herein, without distinction of any kind, such as race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status. 3. Every person has the right of recognition everywhere as a person before the law. Every person is equal before the law. Every person is entitled without discrimination to equal protection of the law.

460

chapter c

4. The rights of women, children, the elderly, persons with disabilities, migrant workers, and vulnerable and marginalised groups are an inalienable, integral and indivisible part of human rights and fundamental freedoms. 5. Every person has the right to an effective and enforceable remedy, to be determined by a court or other competent authorities, for acts violating the rights granted to that person by the constitution or by law. 6. The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives. It is ultimately the primary responsibility of all asean Member States to promote and protect all human rights and fundamental freedoms. 7. All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds. 8. The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society. 9. In the realisation of the human rights and freedoms contained in this Declaration, the principles of impartiality, objectivity, non-selectivity, non-­ discrimination, non-confrontation and avoidance of double standards and politicisation, should always be upheld. The process of such realisation shall take into account peoples’ participation, inclusivity and the need for accountability. Civil and Political Rights 10. asean Member States affirm all the civil and political rights in the Universal Declaration of Human Rights. Specifically, asean Member States affirm the following rights and fundamental freedoms: 11. Every person has an inherent right to life which shall be protected by law. No person shall be deprived of life save in accordance with law. 12. Every person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.

85 asean Human Rights Declaration

461

13. No person shall be held in servitude or slavery in any of its forms, or be subject to human smuggling or trafficking in persons, including for the purpose of trafficking in human organs. 14. No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. 15. Every person has the right to freedom of movement and residence within the borders of each State. Every person has the right to leave any country including his or her own, and to return to his or her country. 16. Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements. 17. Every person has the right to own, use, dispose of and give that person’s lawfully acquired possessions alone or in association with others. No person shall be arbitrarily deprived of such property. 18. Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality. 19. The family as the natural and fundamental unit of society is entitled to ­protection by society and each asean Member State. Men and women of full age have the right to marry on the basis of their free and full consent, to found a family and to dissolve a marriage, as prescribed by law. 20. (1) Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal, at which the accused is guaranteed the right to defence. (2) No person shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed. (3) No person shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each asean Member State. 21. Every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence including personal data, or to attacks upon that person’s honour and reputation. Every person has the right to the protection of the law against such interference or attacks. 22. Every person has the right to freedom of thought, conscience and religion. All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated.

462

chapter c

23. Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice. 24. Every person has the right to freedom of peaceful assembly. 25. (1) Every person who is a citizen of his or her country has the right to ­participate in the government of his or her country, either directly or indirectly through democratically elected representatives, in accordance with national law. (2) Every citizen has the right to vote in periodic and genuine elections, which should be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law. […]

chapter d

Europe Introduction The European continent can look back on a long democratic tradition, albeit with many ups and downs. One international organization that truly stands for the principle of democracy since its foundation is the Council of Europe (CoE), which is the continent’s leading human rights organization comprising 47 Member States today. The fundamental importance of the principle of democracy is already reflected in the second preamble consideration of the Statute of the CoE of 1949 which reads: “Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy.” This understanding of the relation between democracy and human rights appears again only one year later in the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr). In the fourth preamble consideration the member states of the echr reaffirm “their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.” Since that time, democracy has become part of the inseparable and steadfast CoE-triangle “human rights, democracy and the rule of law.” This long history is probably the best explanation why there are many documents within the CoE which exclusively deal with democracy. Examples in point are the “Declaration Regarding Intolerance – a Threat to Democracy” of 1981 (→ Doc. 87) or the “Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe” of 2002 (→ Doc. 91). Apart from that, the Parliamentary Assembly of the CoE has produced a remarkable output of relevant resolutions. The particular feature of these resolutions is that they deal with highly specific problems of current relevance for the CoE Member States. A very good example is resolution 1636 of 2008 – “Indicators for media in a democracy” (→ Doc. 94) or resolution 1826 of 2011 – “Expansion of democracy by lowering the voting age to 16” (→ Doc. 96). When dealing with democracy documents of the CoE it is indispensable to  also mention the European Commission for Democracy through Law, ­better known as the Venice Commission as it meets in Venice. The role of this

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_013

464

chapter d

institution is to provide legal advice to States on issues of rule of law and democracy. In doing so, one of its particular functions is to assist states in bringing their legal and institutional structures into line with European and international standards. Currently, the Commission has 60 Member States. In addition the Commission has one Associate Member (Belarus), five observers (Argentina, Canada, the Holy See, Japan and Uruguay), as well as three members with special status (European Union, Palestinian National Authority and South Africa). The Commission has adopted a remarkable number of so-called “main reference documents” which address the role of parliament in a democracy and topics of fundamental importance for democracy, such as elections, referenda or political parties. The documents of the Commission – which are of special interest for this compilation – are often quite long and detailed. Therefore, the editors had to make a difficult selection. The three documents which have been chosen take up topics of general interest while at the same time also addressing practical questions (“Code of Good Practice in Electoral Matters – Guidelines and Explanatory Report,” → Doc. 98; “Report on the Role of the Opposition in a Democratic Parliament,” → Doc. 99; “Guidelines on Political Party Regulation by osce/odihr and Venice Commission,” → Doc. 100). The most important international organization on the European continent surely is the European Union (eu) which traces its origins back to the European Coal and Steel Community (ecsc) and the European Economic Community (eec), formed originally by six countries in 1952 and 1958 respectively. Today the eu has 28 member states and is the most powerful economic union in the world and the most successful integration project in history. Nevertheless, and notably in comparison to the CoE, the eu has only adopted a relatively small number of documents which are specifically related to democracy. One obvious explanation for this is that the field of activity of the eu is by far broader than that of the CoE. Furthermore, it may be argued that the principle of democracy is to some extent self-evident in the context of the eu, given the internal governmental structure of its member states. Nevertheless, the Treaty of Lisbon for example clearly confirms three principles of democratic governance in Europe: (1) Democratic equality (the European institutions must give equal attention to all citizens), (2) Representative democracy (a greater role for the European Parliament and greater involvement for national parliaments), (3) Participatory democracy (new forms of interaction between citizens and the European institutions, like the citizens’ initiative). In addition, the “Declaration on democracy”, adopted by the European Council in 1978, is an eu instrument of fundamental character relating to democracy (→ Doc. 101). Furthermore, the documents of the Organization for Security and Co-operation in Europe (osce) deserve special mentioning. The osce has its

Introduction

465

roots in the 1975 Conference on Security and Co-operation in Europe (csce) held in Helsinki, Finland. Today the osce comprises 57 participating states and is the world’s largest security-oriented intergovernmental organization. Its mandate includes issues such as democratization, elections, good governance, human rights, media freedom and development as well as the promotion of rule of law. Especially its declarations of the early 1990s are highly important, because, at the time, they underpinned the European democratization process after the end of the Cold War and led to a cutback of East-West retentions. This applies notably to the “Document of the Copenhagen Meeting” (→ Doc. 102), in which the representatives of the participating states “recognize that pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms”. Even more important is the “Charter of Paris for a New Europe” (→ Doc. 103), which may be considered a landmark in European history. This document includes a new Magna Carta, enshrining freedoms, which are essential for democracy. Furthermore, it proclaims the universal right to free elections, and in its section about “Human Rights, Democracy and Rule of Law” it states flatly that “[n]o one will be above the law”. The Commonwealth of Independent States (cis) was created in December 1991 when the Soviet Union disintegrated. cis is a regional international organization whose participating countries are former Soviet Republics. With regard to the “Convention on Standards of Democratic Election, Voting Rights and Freedoms in the Member States of the Commonwealth of Independent States” (→ Doc. 104), Article 19 para. 2 deserves special attention. With this provision the states parties to the Convention commit themselves to protect a remarkable number of democratic principles and standards. It has to be underlined, however, that at least some of the cis member states continue to face serious challenges in meeting basic international democratic standards. The guam Organization for Democracy and Economic Development is also a regional international organization of post-Soviet states with its secretariat in Kiev, Ukraine. Given the existence of the cis, guam is sometimes regarded as a way to counter the Russian influence in the area and as an approach which is strongly supported by the United States. The acronym guam stems from the first letters of its member states Georgia, Ukraine, Azerbaijan, and Moldova. Given this composition it is interesting to note that one of the core pillars of guam is democracy, a term that even appears in its name. This is also reflected in the charter of the organization (→ Doc. 106) which states in Article 1, para. 1: “The main purposes of guam are: promoting democratic values, ensuring rule of law and respect of human rights.” Apart from these clear statements, it must be stressed specifically in the context of both, cis and guam, which have a Soviet and post-Soviet heritage to carry, that the effectiveness of the documents

466

chapter d

depends very much on their practical implementation in the member states and on the member states’ understanding of what democracy means regarding concrete issues such as the organization of the electoral process or the role of political parties. On the democracy documents in Europe, see Armin von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization, and International Law, in: The European Journal of International Law 15 (2004), p. 885–906; Gregory Flynn/Henry Farrell, Piecing Together the Democratic Peace: The csce, Norms, and the “Construction” of Security in Post-Cold War Europe, in: International Organization 53 (1999), p. 505–535; David M. Olson, Paradoxes of Institutional Development: The New Democratic Parliaments of Central Europe, in: International Political Science Review 18 (1997), p. 401–416; Chris Skelcher/Jacob Torfing, Improving democratic governance through institutional design: Civic participation and democratic ownership in Europe, in: Regulation & Governance 4 (2010), p. 71–91; Steven Wheatley, Democracy in International Law: A European Perspective, in: The International and Comparative Law Quarterly 51 (2002), pp. 225–248.

86 Statute of the Council of Europe

I

Council of Europe

86

Statute of the Council of Europe – Excerpts

467

CETS No: 001, London (Great Britain), 5 May 1949 The Governments of the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Irish Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Kingdom of Norway, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland, Convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation; Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy; Believing that, for the maintenance and further realisation of these ideals and in the interests of economic and social progress, there is a need of a closer unity between all like-minded countries of Europe; Considering that, to respond to this need and to the expressed aspirations of their peoples in this regard, it is necessary forthwith to create an organisation which will bring European States into closer association, Have in consequence decided to set up a Council of Europe consisting of a committee of representatives of governments and of a consultative assembly, and have for this purpose adopted the following Statute:

Chapter I – Aim of the Council of Europe

Article 1 a. The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress. b. This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in ­economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

468

chapter d

c. Participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations and of other international organisations or unions to which they are parties. d. Matters relating to national defence do not fall within the scope of the Council of Europe.

Chapter II – Membership

[…] Article 3 Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I. Article 4 Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe by the Committee of Ministers. Any State so invited shall become a member on the deposit on its behalf with the Secretary General of an instrument of accession to the present Statute. […]

87 Declaration Regarding Intolerance

87

469

Declaration Regarding Intolerance – a Threat to Democracy

Adopted by the Committee of Ministers of the Council of Europe, 14 May 1981 (68th Session) The Committee of Ministers of the Council of Europe, 1. Convinced that tolerance and respect for the dignity and intrinsic equality of all human beings are the very basis of a democratic and pluralistic society; 2. Profoundly disturbed by the resurgence of various forms of intolerance; 3. Reaffirming its determination to safeguard the effective political democracy referred to in the Preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms; 4. Recalling that human rights and fundamental freedoms are the very foundation of justice and peace throughout the world; 5. Bearing in mind that the Convention for the Protection of Human Rights and Fundamental Freedoms has successfully afforded effective international protection, without discrimination, to everyone within the jurisdiction of the Contracting States; 6. Recalling that, in accordance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination and following the Committee of Ministers Resolution (68) 30 of 31 October 1968, on measures to be taken against incitement to racial, national and religious hatred, several member states have either adopted new legislation or reinforced existing legislation against acts inspired by racism; 7. Welcoming the adoption by the Consultative Assembly of Resolution 743 (1980) on “the need to combat resurgent fascist propaganda and its racist aspects”; 8. Considering that the best way of countering all forms of intolerance is to preserve and consolidate democratic institutions, to foster citizens’ confidence in those institutions and to encourage them to take an active part in their operation; 9. Convinced of the vital part played by education and information in any action against intolerance, whose origin frequently lies in ignorance, source of incomprehension, hatred and even violence; I. Vigorously condemns all forms of intolerance, regardless of their origin, inspiration or aims, and the acts of violence to which they give rise, especially when human lives are at stake; II. Rejects all ideologies entailing contempt for the individual or a denial of the intrinsic equality of all human beings;

470

chapter d

III. Solemnly recalls its unswerving attachment to the principles of pluralistic democracy and respect for human rights, the cornerstone of membership of the Council of Europe, as well as to the Convention for the Protection of Human Rights and Fundamental Freedoms, the essential instrument in the effective exercise of these rights; IV. Decides: i. to reinforce efforts, at national and international levels, and particularly in the framework of the Council of Europe, to prevent the spread of totalitarian and racist ideologies and to act effectively against all forms of intolerance; ii. to take, with this objective in mind, all appropriate measures and to implement a programme of activities including, in particular, the study of legal instruments applicable in the matter with a view to their reinforcement where appropriate; iii. to promote an awareness of the requirements of human rights and the ensuing responsibilities in a democratic society, and to this end, in addition to human rights education, to encourage the creation in schools, from the primary level upwards, of a climate of active understanding of and respect for the qualities and culture of others; V. Agrees that member states will make every effort so that the principles enounced above prevail within other international Organisations; VI. Appeals to all institutions, movements and associations and to all political and social forces to contribute towards a sustained effort against the threat to democracy represented by intolerance.

88 Resolution 800 on the Principles of Democracy

88

471

Resolution 800 on the Principles of Democracy

Text adopted by the Standing Committee, acting on behalf of the Assembly, on 1 July 1983 The Assembly, 1. Recalling its continuous work to promote democracy, and notably the conferences and colloquies it organised on the development of democratic institutions (1976), on the role of political parties (1978), and on technology and democracy (1981), as well as the positions it had adopted with respect to threats to democracy such as the resurgence of fascist and racist ideology (1980) and terrorism (1982); 2. Noting that the Committee of Ministers, too, has made important contributions towards the definition of democracy, notably by adopting declarations on intolerance (1981), freedom of expression, and the development of citizen participation in the management of local affairs (1982); 3. Considering the results of the Colloquy on the concept of democracy organised by its Political and Legal Affairs Committees (Strasbourg, 23–25 March 1983); 4. Noting that the concept of democracy, which derives from a belief in the inalienable dignity and equal value of every individual human being, means that the citizen should be given every opportunity to influence, through voluntary participation, social and professional as well as political life in a spirit of solidarity, and that the democratic principle also has consequences for international relations; 5. Convinced that, important and indispensable as the criteria of the rule of law and equality before the law are, the mechanisms of democracy must be first of all a reflection of a living ethic, respectful of plurality of beliefs and the right to dissent, 6. Proclaims the following principles, which take on added importance at a time when economic recession tends to encourage egotistic reflexes by individuals and nations: A Social and Professional Life i. Education for democracy in school and beyond is necessary to ensure awareness, especially on the part of the young, upon whom the future of democracy depends, that they are heirs to a noble ideal whose roots lie deep in the GrecoRoman, Judeo-Christian culture of Europe, but contains no element of ethnic or cultural superiority or exclusiveness, being, on the contrary, essentially universal, based on human dignity.

472

chapter d

ii. Education in human rights is equally necessary, also to ensure understanding that the enjoyment of rights is inseparable from responsibility. iii. Free, pluralistic mass media have an important education role to play. iv. In professional life, as elsewhere, individuals can only become fully responsible and capable of exercising democratic freedoms of choice if they are given access to the fullest information concerning their own situation and that of their firm or organisation. v. Democratic principles require that consent should be freely given, rather than compelled, though legislation is justified to protect the weak, lacking the bargaining power to protect their interests. B Political and Institutional Life i. Free elections, with secret ballot and universal suffrage, at reasonable intervals, to parliaments, enjoying a large measure of sovereignty and composed of representatives of political parties with freedom to organise and express themselves, remain the irreplaceable core of democratic political life. ii. Such elections, though indispensable, are not in themselves sufficient, since the citizen’s political rights cannot be limited to the act of casting a vote at intervals of some years. On the contrary, democracy atrophies without frequent participation by citizens who should, wherever possible, be consulted on matters closely concerning them, through appropriate mechanisms; only full political participation enables democracy to attain that adaptability to changing circumstances which justifies our faith in its material, as well as moral superiority. iii. Elections should not result in excessive concentration of power (doctrine of separation of powers, or even division between government and opposition power). These principles also apply to all subordinate or autonomous authorities in countries with federal or decentralised systems of government. iv. Elected representatives lose credibility with the voters if, in today’s situation (characterised by a growing workload resulting from increasing scope and complexity of government action), they seem to delegate their responsibilities to a depersonalised and computerised bureaucracy. v. The tendency of citizens to organise, in sometimes highly militant pressure groups and “single-interest” groups, outside the political parties, is a salutary warning, fully compatible with the democratic principle of freedom, to the parties that they must not fail in their essential function of articulating the real concerns of their electors. vi. The responsibility of elected representatives is much increased by the fact that, due to modern science and technology, their decisions may have irreversible consequences on the human and natural environment, affecting future generations and humanity itself.

88 Resolution 800 on the Principles of Democracy

473

C International Relations i. The democracies will inevitably lose respect internationally and among their own young people, who despise hypocrisy, if they support oppressive dictatorial regimes, and appear complacent about the gap between North and South and hunger in the world. Politicians should not neglect their educational function, and should trust their electorate by placing them squarely before the facts and options, so that the necessary decisions (whose unpopularity is assumed rather than tested) may be taken before mankind faces ­further tragedy. ii. Just as migrant workers should not be refused appropriate political rights in the host countries to whose wealth they contribute, underprivileged sectors of mankind must be helped to benefit from a more just distribution of the earth’s resources and thereby to attain and pass the minimum level of material wellbeing compatible with human dignity, which democracy exists to express and consolidate. D Legal Standards in Democracy i. Democracy is the government of the people by the people. Its basic principles are the rule of law and the separation of powers. Under a democratic ­system the rule of law governs the functioning of the government and administration, and confers on judges the power to verify whether the administration has complied with that rule. ii. It is the responsibility of the democratic system to strike a proper balance between effective action on the part of government and administration, and the protection of citizens’ rights and freedoms. In particular, the system must be capable of maintaining such a balance between the requirements of the general interest of the community and those of the protection of every individual’s fundamental rights as set forth in the European Convention on Human Rights. This entails the respect of minority rights by the majority. Besides the protection of civil and political rights, care should be taken to ensure that citizens have the full benefit of their fundamental economic, social and cultural rights. An open-minded approach should also be adopted to new provisions affording fuller protection of human rights. iii. In a crisis or state of emergency, all means available under ordinary law should be exhausted before exceptional measures are taken. Should this extreme solution prove necessary, it should be used only to the extent strictly required by the situation. On no account should the “hard core” of human rights be affected. If possible, the latter should extend beyond the sole rights specifically protected by Article 15 of the European Convention on Human Rights;

474

chapter d

7. Resolves to formulate proposals to the Committee of Ministers concerning the Work Programme of the Council of Europe, which has a clear duty under the Statute to intensify its action to promote the above principles, in the light of its current work on European co-operation in the 1980s and of the results of the first Strasbourg Conference on Parliamentary Democracy (4–6 October 1983) with the participation of non-European democracies.

89 Instruments of Citizen Participation

89

475

Instruments of Citizen Participation in Representative Democracy

Resolution 1121 (1997), adopted by the Assembly, 22 April 1997 (11th Sitting) 1. A truly living democracy depends on the active contribution of all citizens. Their participation in political life and their co-operation within political institutions are thus a decisive factor for the smooth functioning of democratic institutions. 2. The poor rate of participation in legislative elections, as well as in referendums held in member states and, in general, citizen dissatisfaction with the functioning of pluralist democracies call for a debate on the phenomenon, which is hardly surprising since democracy is a permanent quest demanded by new circumstances and changing attitudes. 3. The causes of this phenomenon are many: the contrast between the complexity of political terminology and the simplification and dramatisation of media presentations of the issues at stake; the fact that information can be communicated instantly while politicians are assumed to be slow in reaching decisions; the fact that people do not understand the complexity of the problem and expect quick, apt solutions; the discrepancy between election promises and their implementation. 4. The anxiety generated by this state of affairs creates a need among citizens to participate more in political decision making with a view either to preventing a deterioration in their situation or to improving it. 5. The Assembly therefore considers that the opportunities for direct citizen participation in political life offered by the representative system must be enhanced to correspond more closely to citizens’ aspirations. 6. A prior observation is necessary to prevent a misunderstanding, with potentially weighty implications, and which tends to set direct democracy against representative democracy. The harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by the general interest, can be achieved only through parliamentary deliberations. The use of direct democracy must be regarded as a complement. Even in Switzerland, an exemplary country in the area of direct democracy, 95% of decisions are taken by parliament. 7. However, before developing forms of direct democracy – for example, interactive communication facilities on information networks and referendums – we must consider their viability and possible adverse effects. 8. Information facilities, however sophisticated, would not be able – at least not in the foreseeable future – to extend the bilateral dialogue between one elected representative and one citizen to a dialogue between one elected

476

chapter d

r­ epresentative and a number of citizens; the electronic forum is not yet fully tried and tested. 9. The national referendum is written into the constitutions of representative democracies but varies from one country to another in terms of its objectives, its subjects and its means of implementation. Referendums run the risk of becoming plebiscites when they are used by the executive to reinforce its own power. 10. This risk exists in democracies consolidated over time, particularly in those countries with large populations which are therefore more difficult to govern than small countries. The risk is even greater in new democracies which are therefore more fragile. 11. Implemented in relatively small communities for practical issues, regional and local referendums cause less concern and are recommended. 12. Nevertheless, the Assembly realises not only the drawbacks but also the positive aspects of consulting the electorate directly, such as the fact that it enables a minority of citizens to express their opinion and be heard by government and can stimulate a democratic debate either legitimising a decision taken by the government or approving a decision rejected by the government. 13. Abuse of referendums must not obscure their real aim which is to render representative democracy more participative and in so doing to consolidate it and to serve as an antidote to the current malaise undermining it. 14. The Assembly therefore believes that it is important to lay down parameters for referendums to ensure that, where they are held, they conform as far as possible to best practice and strengthen democracy and civil society. 15. Consequently, the Assembly invites the member states: i. to improve their system of representative democracy by striking a balance between the exercise of responsibility of political power and the role of citizens in the decision-making process. Without such a balance, we will be unable to prevent either the erosion of confidence in the representative system or the rash use of frequent referendums which would make any long-term policy based on fundamental options random, ineffective or even impossible; ii. to regard all subjects as suitable for being submitted to a referendum, with the exception of those which call in question universal and intangible values such as the human rights defined in the Universal Declaration of Human Rights and the European Convention of Human Rights, and the basic values of democracy in general and parliamentary democracy in particular; iii. to take account in their thinking of the distinctions to be made between the subjects suitable for a referendum, the result of which is binding, and the subjects suitable for a consultative referendum, the

89 Instruments of Citizen Participation

477

r­esult of which enables political leaders to improve their programmes and decisions; iv. to make provision for referendums designed to repeal existing laws as well as for referendums offering the choice between various options; v. to envisage rules to ensure that citizens are properly informed about all the issues involved in the referendum and that questions and proposals are worded completely unambiguously; vi. to limit the number of subjects per referendum to be held the same day in order to clarify the debates on the documents subjected to a vote and to help citizens to reach a decision; vii. where appropriate, to create organs responsible for applying these rules and guarantee the independence of such organs; viii. to lay down rules and guiding principles which, in order to prevent any misuse of the referendum: a. enable a referendum to be set in motion by citizens, whereby the number of signatories should be fixed by each state in accordance with a threshold considered to be significant compared with the total electorate; b. ensure that the referendum is preceded by a debate in parliament; c. fix a quota for participation in the ballot which discourages abstentionism while guaranteeing a minimum rate of participation enabling the result obtained to be regarded as representative and valid; d. enable the parliament to present its own alternative to any proposal by the citizens.

478 90

chapter d

Impact of Electoral Systems on the Political Process

Resolution 1231 (2000), adopted by the Standing Committee, acting on behalf of the Assembly, 9 November 2000 1. The electoral system is one of the most fundamental elements of representative democracy. A crucial moment in representative democracies is how elected officials are elected. 2. Within the member states of the Council of Europe several electoral systems are in use. These different systems can be categorised into three main types: plural-majority systems, semi-proportional systems and proportional systems. Thirty member countries apply various proportional electoral systems. 3. The impact of electoral systems on the political process and on citizens’ commitment to the political process is an important topic to be taken into consideration. 4. A large turnout at elections is an important element of democracy. 5. The proportion of women parliamentarians is increasing in western democracies. According to several studies the list-proportional representation system provides the best opportunity for women to take their place in parliament. 6. The electoral system can also have an effect on the way ethnic, linguistic and religious minorities are represented. It is important to guarantee that minorities are not discriminated. 7. The Assembly considers that citizens’ participation – notably that of the young – in the political process is a topic of fundamental importance and should be debated recurrently by the Assembly in order to stimulate a broader European debate. 8. The Assembly proposes to set up statistics and to keep them updated, possibly within the framework of the International Institute of Democracy, in order to be able to compare turnout at elections in the member states and factors characterising the elected members, such as women’s representation, length of parliamentary service, age and profession, thus evaluating the development of democracy. 9. The Assembly suggests that the parliaments of member countries pay attention to issues regarding the effects of the electoral systems on the political process. 10. The Assembly, as well as national parliaments, should promote research on how to stimulate citizens’ participation in the political process.

91 Vilnius Declaration on Regional Co-operation

91

479

Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe

CM (2002)55, adopted by the Committee of Ministers of the Council of Europe, Vilnius (Lithuania), 3 May 2002 (110th Session) Bearing in mind the statutory aim of the Council of Europe, which is to achieve a greater unity between its members across the continent on the basis of their common commitment to pluralist democracy, respect for human rights and the rule of law; Convinced that regional co-operation between European countries can make an essential contribution to the building of a Greater Europe without dividing lines, encompassing all the countries on the continent, as advocated by the Committee of Ministers’ Budapest Declaration (7 May 1999); Recalling also the Declaration on transfrontier cooperation in Europe adopted by the Committee of Ministers on the occasion of the 40th Anniversary of the Council of Europe; We, the Ministers of Foreign Affairs of the member states of the Council of Europe, meeting in Vilnius for our 110th session and having discussed the achievements of a number of regional co-operation mechanisms; Stress the importance of regional co-operation as a factor for consolidating democratic stability in various parts of the European continent; Underline that, according to the particular situation of the countries involved and their common aims, regional co-operation helps to implement the Council of Europe’s founding principles of pluralist democracy, human rights and the rule of law at grass-roots level, by: – promoting the Council of Europe’s values and standards on a dayto-day basis; – strengthening the protection of national minorities while respecting the territorial integrity of states; – transforming borders into lines of contact thus facilitating exchanges between peoples; – promoting mutual understanding and cultural co-operation; – encouraging good neighbourly relations and mutual trust; – fostering social and economic development; Call for the regional dimension of the Council of Europe’s co-operation programmes to be reinforced in the regions regarded as priorities by the Organisation, building on the results already achieved in the Council’s areas of responsibility;

480

chapter d

Express our support for efforts to develop regional cooperation wherever a need for such cooperation exists; Encourage member states, in view of the experience acquired by regional co-operation mechanisms, to reinforce this co-operation, especially with regard to the following: – awareness-building in the spheres of human rights, protection of minorities, confidence-building measures and education; – freedom of the media; – more advanced integration processes and the resulting opportunities for all member states; – transborder activities by civil society to promote pluralist democracy; – transfrontier co-operation between local and regional authorities and the setting up and development of Euro-regions; – cross-border harmonisation of the conditions governing social and economic development, trade and investment, as well as improvements to infrastructure and conservation of the natural and cultural heritage; – freedom of movement and contacts between people, especially youth; – education and health protection; – justice and law enforcement, including the fight against organised crime and corruption, trafficking in human beings and illegal migration; – co-operation against terrorist activities while respecting human rights and fundamental freedoms; Agree to promote coherence between the activities of the Council of Europe and those of the various regional co-operation mechanisms, as well as the sharing of their experience and results; To that end, invite the Secretary General of the Council of Europe to convene a working meeting of representatives of regional co-operation mechanisms with representatives of the Council of Europe and other European institutions and organisations, in order to: – exchange and compare information on regional activities and projects; – identify common methods and aims for effective interaction; – discuss possible joint projects in specific areas; – lay down guidelines for the exchange of information and for co-­ operation between their secretariats or representatives in the planning and implementation of programmes; – gather information on the Council of Europe’s experience and achievements and contribute to ongoing or planned activities of relevance to them; – make proposals regarding future co-operation.

92 Abolition of Restrictions on the Right to Vote

92

481

Abolition of Restrictions on the Right to Vote

Resolution 1459 (2005), adopted by the Assembly, 24 June 2005 (24th Sitting) 1. The Parliamentary Assembly, in line with its Recommendation 1500 (2001) on the participation of immigrants and foreign residents in political life in the Council of Europe member states, stresses the importance of the right to vote and to stand in elections as a basic precondition for preserving other fundamental civil and political rights upheld by the Council of Europe. Electoral rights are the basis of democratic legitimacy and representativeness of the political process. They should, therefore, evolve to follow the progress of modern societies towards ever inclusive democracy. 2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, it therefore invites the member and observer states of the Organisation to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim. 3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad. 4. In line with the case-law of the European Court of Human Rights, any exceptions to this rule must be prescribed by law, pursue a legitimate aim and not be arbitrary or disproportionate. 5. All legal residents are normally obliged to pay local taxes and their lives are directly affected by the decisions of local authorities. The right to vote and to stand as candidates in local elections should therefore be granted to all legal residents having lived long enough in the country, regardless of their nationality or ethnic origin. In this context, the Assembly urges the countries concerned to implement the recommendations by the Council of Europe Commissioner for Human Rights on granting that right to residents with the special status of “non-citizens”, in accordance with the Convention on the Participation of Foreigners in Public Life at Local Level (ets No. 144). 6. In view of the possible conflict of loyalties between the country of which a person is a national and the country of residence, the right to vote and stand as a candidate in national elections (parliamentary or presidential) should generally be attached to nationality. Persons having several nationalities should be allowed to choose freely in which country they wish to exercise their right to vote.

482

chapter d

7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting, consistent with Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal, operational and technical standards for e-voting. Member states should co-operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories. 8. Considering that rehabilitation of prisoners, aimed at their reintegration into society – giving them all the rights and duties accorded to other citizens – is one of the purposes of criminal sanctions, the Assembly regrets that in many countries persons convicted of a criminal offence are barred from voting, in some cases even for some time after their release from prison. A more modern approach would be to limit the withdrawal of the right to vote to crimes committed against the democratic process (for example, election fraud, illicit pressure on voters or candidates, participation in a military putsch, participation in terrorist activities as established by a court judgment). In any case, in view of the judgment of the European Court of Human Rights in the case of Hirst v. the United Kingdom (30 June 2004), national parliaments should reconsider existing restrictions and determine whether they still pursue a legitimate aim and are not arbitrary or disproportionate. 9. As stressed by the Venice Commission, the need for democratic control over the military should not be used as an excuse to automatically deprive military servicemen of their voting rights. 10. The Assembly also stresses the importance of protecting the voting rights of vulnerable groups, such as residents of nursing homes, prison inmates, soldiers and handicapped people. Appropriate measures must be taken to avoid any undue influence by helpers, supervisors or hierarchical superiors, in particular by ensuring the secrecy of the vote. 11. The Assembly therefore invites: i. the Council of Europe member and observer states concerned to: a. reduce minimum age requirements for active and passive electoral rights to 18 years for the right to vote and 25 years for the right to stand as candidates; b. grant electoral rights to all their citizens (nationals), without imposing residency requirements;

92 Abolition of Restrictions on the Right to Vote

483

c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures (postal and/or consular voting) and considering the introduction of e-voting consistent with Recommendation Rec(2004)11 of the Committee of Ministers and to cooperate with one another to this end; d. to sign and ratify the 1992 Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level and to grant active and passive electoral rights in local elections to all legal residents; e. to reconsider existing restrictions on the electoral rights of prisoners, persons who have been convicted of a criminal offence and members of the military, with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim; f. to take appropriate measures to protect the electoral rights of vulnerable groups of voters (in particular, persons living in nursing homes, prisoners, members of the military, nomadic groups), in line with the Venice Commission’s Code of Good Practice in Electoral Matters adopted in July 2003; ii. the Council of Europe, and in particular the Venice Commission, to develop further its activities aimed at improving the conditions for the effective exercise of electoral rights, putting a special emphasis on cooperation aimed at facilitating the exercise of electoral rights by expatriate citizens.

484

chapter d

93

Resolution 1547 – State of Human Rights and Democracy in Europe

Adopted by the Parliamentary Assembly, 18 April 2007 (15th Sitting) State of Human Rights and Democracy in Europe 1. Membership of the Council of Europe, founded in 1949, is based on three pillars: the enjoyment of human rights and fundamental freedoms by all persons within the jurisdiction of its member states, the consolidation of the rule of law, and the existence of a genuine pluralistic democracy, based on the spiritual and moral values which are the common European heritage. The Council of Europe’s achievements in the field of human rights and in the establishment and consolidation of democracy are unparalleled. 2. However, we must never allow ourselves to become complacent with respect to this acquis, even though it has surpassed the Organisation’s founding fathers’ most optimistic dreams. The Parliamentary Assembly of the Council of Europe, composed of parliamentarians from the Organisation’s 46 member states, therefore feels duty bound not only to acknowledge the Organisation’s ­outstanding achievements, but also to highlight the new tasks and challenges confronting it in the 21st century. […] II The State of Democracy in Europe i The Council of Europe, Home of Democracy 37. The Assembly recalls that the Council of Europe is the oldest pan-European institution standing for democratic values and principles. Acceptance and realisation of the principles of democracy, the rule of law and human rights and fundamental freedoms are a necessary condition for membership in the Organisation. 38. Since its creation fifty-eight years ago, the Council of Europe has established an important acquis in the field of democracy which constitutes a valid reference for the development of democracy. It includes 200 conventions, treaties and charters, as well as recommendations of the Committee of Ministers, recommendations, resolutions and opinions of the Parliamentary Assembly, re­commendations, resolutions and opinions of the Congress of Local and Regional Authorities of the Council of Europe, reports of other Council of Europe bodies, in particular, the European Commission for Democracy through Law (Venice Commission), the European Commission against Racism and Intolerance (ecri) and the Group of States against Corruption (greco), as well as various background reports and publications that support the activities of the Council of Europe and the output of interdisciplinary projects.

93  Res. 1547 – State of Human Rights and Democracy

485

39. The Council of Europe’s acquis in the field of democracy is aimed at assisting standard setting and it seeks to do this through the elaboration of legal instruments, and at establishing particular institutional structures or practices. Apart from this legal basis, the development of democratic institutions and practices in member states is addressed through the activities of the Council of Europe’s organs and bodies which provide guidelines for the identification of democratic priorities and concerns. 40. The Council of Europe has played an essential role in supporting the democratic transformation processes of the mid-1970s and early 1990s, which are still ongoing in some European countries, and in consolidating democracy in its member states. 41. From pre-accession co-operation through to the formal accession and subsequent monitoring procedures, the Council of Europe has effectively guided countries through the difficult process of democratisation by offering its expertise, legal assistance and co-operation programmes, and by identifying deficiencies and proposing concrete remedies and solutions in compliance with democratic standards. 42. Because it is an open, never-ending process in which the freedom of all citizens to affect their own lives should be increased, democracy is still a challenge for all Council of Europe member states. In many of them, citizens are not satisfied with the state of their democracy and try to overcome democratic deficits and improve the quality of their democracy. Democracy can best flourish and succeed when it is embedded in the culture of its citizens, which requires affirmative education and cultural policies by all member states and the Council of Europe. 43. With a view to further developing and deepening the reflection on different critical issues in the field of today’s democracy in all Council of Europe member states, the Forum for the Future of Democracy was established in 2005, following the 3rd Summit of the Council of Europe. ii Major Challenges to Democracy 44. While expressing satisfaction at the unquestionable achievements and progress in the implementation of democratic standards in the European continent over recent years, the Assembly expresses its concern over the increasing number of deficits in democracy which may be observed in all Council of Europe member states. 45. The Assembly notes, with great concern, the increasing political discontent and disaffection among citizens, which is well illustrated by a declining turnout at elections and a growing disappointment or indifference towards politics, especially among the younger generations. As a result, people are losing

486

chapter d

confidence in democracy and the gap between political institutions and citizens is increasing. 46. This phenomenon is interrelated with the dysfunctioning of some political institutions in many countries: political parties have partly lost their capacity to be a link between citizens and state; representativeness of parliaments is all too often questionable; basic principles of democracy such as separation of powers, political freedoms, transparency and accountability are widely perceived, and sometimes rightly so, as being insufficiently implemented or not implemented at all. 47. In some “old democracies”, the decline in interest towards the dominant parties and parliament is not an expression of a lack of political interest but of a critical assessment of the work of these institutions. In these cases, the traditional institutions of representative democracy should open themselves to more citizen participation in order to overcome their own shortcomings and to remotivate those citizens who are concerned with their dysfunctioning. 48. In such democracies, thought could usefully be given as to whether traditional systems of representative democracy need to take more account of the rapid changes in communications and access to information leading to the evolution of systems of direct democracy. 49. The Assembly is deeply concerned by reported cases of violations of basic standards of democracy in a number of Council of Europe member states. In particular, there have been worrying reports of restrictions of freedom of expression, attempts to limit freedom of association, of the absence of free and fair elections and of distortions concerning representative, participatory and inclusive democracy. Likewise, there is evidence of insufficient implementation of other basic democratic principles, including separation of powers, checks and balances and the rule of law. 50. The Assembly is also seriously concerned by reported cases of lack of the effective separation of powers and adequate checks on the potential abuse of power. 51. All countries of our continent – old and younger democracies – have to be more aware of the quality of their democracy. Otherwise, the political power loses the greatest achievement of a well-established and well-functioning democracy: its legitimacy. 52. Freedom of expression and information as well as media pluralism and diversification are of crucial importance for genuine democracy. Recent murders of journalists, restrictions imposed on independent media and sanctions inflicted on journalists raise major concern. Examples of excessive media concentration are also of concern, as such a concentration is detrimental to pluralism and diversity. Manipulation of institutional advertising to put pressure on the media must be strongly condemned.

93 Resolution 1547 – State of Human Rights and Democracy

487

53. The increasing role of the media, which in many cases tend functionally to replace political parties by setting the political agenda, monopolising political debate and creating and choosing political leaders, is a matter of concern. Media are too often primarily business-driven institutions and, by prioritising their business interests over the service to the citizens and democracy, inevitably contribute to the distortion of democracy. The role of the media in setting political agendas, transmitting political debates and forming opinions about political leaders underlines the importance of independent, pluralist and responsible media for a democratic society. 54. Reports on restrictions to freedom of association, including bureaucratic obstacles and unjustified taxation, are also a reason for concern. In some countries, certain professional or ethnic groups do not have the right to organise or form a political party. Yet freedom of association constitutes one of the most basic political rights and a fundamental condition for a well-functioning democracy. 55. Representativity of parliaments is obviously a key element of a representative democracy. In this context every kind of discrimination, be it on gender, ethnic, religious or social grounds, must be eliminated as regards to the right to vote and stand for elections. 56. Citizenship is the crucial political and legal link between the state and the individual. The situation of mass statelessness in certain countries raises serious concern. Steps aimed at limiting statelessness and promoting acquisition of citizenship should therefore continue. 57. Equal participation of women in decision-making processes is a sign of a properly functioning democracy. Unfortunately, parity in politics is far from being achieved. In certain parliaments, women make up as little as 4.4% of members, while the proportion of women in executive bodies at the middle and highest levels is sometimes even worse. 58. In well-established democracies, there should be no thresholds higher than  3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in parliament and government. 59. Holding free and fair elections is an essential element of a democracy. Much has been done in terms of establishing electoral standards and monitoring their observance. However, recent experiences of diverging assessments of elections in some European countries show that there is significant room for improvement in this field.

488

chapter d

60. Reported cases regarding the lack of independence of the judiciary or parliaments must raise justified concern. 61. Consideration could usefully be given by member states as to whether direct democracy (for instance, referendums and citizens’ initiatives) could play a more prominent role. 62. The principles of subsidiarity and proportionality have to be implemented as they are necessary to achieve good governance, which is essential to strengthen democracy. 63. The Assembly acknowledges the importance of local and regional democracy as the foundation and a guarantor of democracy in Europe, and finds it regrettable that the principles of the European Charter of Local SelfGovernment (ets No. 122) are not always genuinely applied. The fact that this charter has not yet been approved is also regrettable. 64. The Assembly is deeply concerned by the existence of a number of geographical areas in Europe, including one country, Belarus, and several regions in Council of Europe member states not under their de facto control, where democratic principles are not implemented. iii The Necessity of Strengthening the Organisation’s action in the Field of Democracy 65. In view of the above-mentioned challenges, the Council of Europe has a major role to play in continuing to assist, encourage and orient its member states in eliminating their shortcomings in democracy. The Assembly calls on all the Organisation’s statutory bodies to give due attention to the problems addressed in this resolution and its explanatory memorandum. 66. The Assembly believes that the Council of Europe’s standard-setting function should be instrumental in facing deficits in democracy. Profound analysis and identification of problems and solutions should be followed by suggestions for action, recommendations for reforms and ideas for guidance. In particular, the identification of the challenges should be followed by the elaboration of legal instruments or policy guidelines. 67. Monitoring procedures should be strengthened. At the same time, measures should be taken in order to ensure better compliance by member states with recommendations made in the framework of these procedures. National parliaments have an important role to play in this respect, and the co-­operation between them and the Assembly should be stepped up. 68. Projects and co-operation programmes, including those aimed at enhancing public awareness of the European Convention on Human Rights and the rights and freedoms it guarantees, should be established in areas of particular concern for democracy.

93 Resolution 1547 – State of Human Rights and Democracy

489

69. The Venice Commission should be given adequate resources to be able to step up its action in providing legal advice and assistance in democracy building. Furthermore, it is encouraged to carry out a study which would develop the concept of classification of categories of democracy building and would illustrate how it could be used as a basis for future assessments of the state of democracy in Europe and thereby enhance the ability of the Assembly to propose useful reforms. 70. The Forum on the Future of Democracy constitutes an excellent tool for further reflection on democracy, assessment of its state, identification of deficits of democracy and promotion of the principles of democracy and good practice. It should be given due importance and adequate resources for further action. 71. The Assembly calls on the Congress for Local and Regional Authorities of the Council of Europe to pursue its activities in the field of local and regional democracy and to further reflect on the challenges to democracy in its areas of competence. 72. The Assembly resolves to closely assess the state of democracy in Europe, to improve its ability to propose the necessary reforms and to hold a debate on this matter on a regular basis. iv The Way Forward 73. Democracy is an ongoing process of political and procedural improvements. 74. The Parliamentary Assembly recalls its previous resolutions addressing different aspects of democracy and its functioning in member states. 75. It calls on all member states to give due attention to the issues raised above and to address them with a view to improving the situation. A number of shortcomings in the functioning of democracy, identified in this resolution, should be remedied without delay. 76. In particular, in order to improve representativeness of parliaments, the categories of people excluded from voting and standing for election should be reviewed in every Council of Europe member state with a view to limiting their number. Moreover, genuine steps towards eradicating statelessness, decreasing the voting age, granting the right to vote to lawfully residing non-citizens and the elimination of all kinds of discrimination, be it ethnic, religious, social or gender-based, should be closely examined, and adequate and necessary measures should be taken. The undemocratic practice of “family voting” must be eliminated. 77. The member states should take adequate measures in order to strengthen national and international mechanisms for promoting the balanced participation of women and men in decision making with a view to achieving a target

490

chapter d

of a threshold of at least 40% of women in decision-making political bodies, be they local, regional, parliamentary or governmental, by 2020. 78. The Assembly also recalls that since the beginning of European integration the right to form a political opposition has been considered an essential element of a genuine democracy. It notes that the opposition in parliament is increasingly granted rights in connection with the setting up of inquiry committees, the calling of special sittings of parliament and the possibility to bring cases before the constitutional court. In some countries it is also proposed to give these rights to individual opposition parties or political groups. Opposition parties and their members cannot only ask for rights and means, but should also show responsibility and willingness to use them and make their best efforts to enhance the efficiency of the parliament as a whole. They should not restrict themselves to only carrying out their natural but perhaps insufficient role of criticism. The parliamentary majority, however, also has the responsibility to respect the right of the minority to dissent from the majority’s opinion and to promote alternative policies. 79. In order to ensure maximum representativity of elected bodies, the granting of voting rights to nationals of Council of Europe member states lawfully residing in another member state and persons who have lost their nationality involuntarily, at least at a local level, should be positively considered. 80. The issue of different forms of distance voting (including electronic voting) should be given close attention with a view to clarifying all the implications and potential challenges. 81. Participatory rights of all citizens should be increased. In particular, consideration should be given to introducing elements of direct democracy such as the right to ask for a referendum or propose legislative initiative. They have to be carefully designed in order to make democracy more representative and to increase the integration and learning capacities of our countries and societies. 82. In Council of Europe member states, political parties have a responsibility to ensure a fair minority representation in elected institutions, taking into account proportionality. There is no one method to achieve this objective and a range of possible measures is available. 83. Only strict adherence to the principles of good governance can prevent corruption from seeping into and changing the nature of democratic institutions. The Council of Europe should insist on the need for a comprehensive legal framework and its enforcement, effective prosecution of law breakers and a continuous adaptation of institutions to better withstand economic crime. 84. All restrictions on freedom of expression should be in accordance with the European Convention on Human Rights and the case law of the Strasbourg

93 Resolution 1547 – State of Human Rights and Democracy

491

Court; pluralism of the media should be ensured and measures should be taken to prevent and dismantle media concentrations. The Council of Europe should establish a specific mechanism to monitor freedom of expression and of the media, which would follow and examine the situation in all Council of Europe member states. 85. At present, few Council of Europe member states have laws regulating the question of lobbying. The Council of Europe should contribute to the debate on the need for such instruments at national and European levels, and, for its part, elaborate guidelines on lobbying. 86. Education for democratic citizenship and human rights is an important condition for the effective protection and promotion of human rights and democracy. The Council of Europe should step up its work in this field in accordance with the outcomes and evaluation of the 2005 European Year of Citizenship through Education. This work should be reinforced by the elaboration and implementation of national programmes in this area. 87. Local and regional authorities should be endowed with all the powers, responsibilities and resources necessary to enable effective implementation of sectoral policies in full accordance with the principles of subsidiarity and good governance and for the benefit of Europe’s citizens.

492 94

chapter d

Indicators for Media in a Democracy

Resolution 1636 (2008), adopted by the Assembly, 3 October 2008 (36th Sitting) 1. The Parliamentary Assembly recalls the importance of media freedom. Freedom of expression and information in the media is an essential requirement of democracy. Public participation in the democratic decision-making process requires that the public is well informed and has the possibility of freely discussing different opinions. 2. All Council of Europe member states have committed themselves to respecting democratic standards. Democracy and the rule of law are necessary conditions for membership of the Council of Europe. Therefore, member states themselves must permanently monitor their state of democracy. However, democratic standards are also part of universally recognised human rights in Europe and hence are not merely an internal affair of a state. Council of Europe member states must also analyse the state of democracy in all the member states, in particular at the Assembly level. 3. The Council of Europe has set standards for Europe on media freedom through Article 10 of the European Convention on Human Rights (ets No. 5) and a number of related recommendations by the Committee of Ministers as well as resolutions and recommendations by the Parliamentary Assembly. 4. The Assembly also monitors media freedom before national elections and produces an analysis on the basis of standards set by the Council for Democratic Elections comprising representatives of the European Commission for Demo­cracy through Law (Venice Commission), the Congress of Local and Regional Authorities of the Council of Europe and the Parliamentary Assembly. 5. The Assembly welcomes the comparative assessments of national media situations prepared, for example, by Reporters Without Borders (Paris), the International Press Institute (Vienna), Article 19 (London), and other organisations. This work provides for important public scrutiny over media freedom, but it does not relieve national parliaments and governments of their political duty to look at their own media situation. 6. The Assembly also welcomes the unesco media development indicators drawn up in consultation with experts from Article 19, the West African Newsmedia and Development Centre and others, which shall help determine communication development strategies within the overall context of national development. 7. The Assembly considers it necessary for a number of principles concerning media freedom to be respected in a democratic society. A list of such principles

94 Indicators for Media in a Democracy

493

would facilitate analyses of national media environments in respect of media freedom, which could identify problematic issues and potential shortcomings. This will enable member states to discuss, at European level, possible actions to address those problems. 8. The Assembly invites national parliaments to analyse their own media situation regularly in an objective and comparable manner in order to be able to identify shortcomings in their national media legislation and practice and take appropriate measures to remedy them. Such analyses should be based on the following list of basic principles: 8.1. the right to freedom of expression and information through the media must be guaranteed under national legislation, and this right must be enforceable. A high number of court cases involving this right is an indication of problems in the implementation of national media legislation and should require revised legislation or practice; 8.2. state officials shall not be protected against criticism and insult at a higher level than ordinary people, for instance through penal laws that carry a higher penalty. Journalists should not be imprisoned, or media outlets closed, for critical comment; 8.3. penal laws against incitement to hatred or for the protection of public order or national security must respect the right to freedom of expression. If penalties are imposed, they must respect the requirements of necessity and proportionality. If a politically motivated application of such laws can be implied from the frequency and the intensity of the penalties imposed, media legislation and practice must be changed; 8.4. journalists must not be subjected to undue requirements by the state before they can work; 8.5. political parties and candidates must have fair and equal access to the media. Their access to media shall be facilitated during election campaigns; 8.6. foreign journalists should not be refused entry or work visas because of their potentially critical reports; 8.7. media must be free to disseminate their content in the language of their choice; 8.8. the confidentiality of journalists’ sources of information must be respected; 8.9. exclusive reporting rights concerning major events of public interest must not interfere with the public’s right to freedom of information; 8.10. privacy and state secrecy laws must not unduly restrict information; 8.11. journalists should have adequate working contracts with sufficient social protection, so as not to compromise their impartiality and independence; 8.12. journalists must not be restricted in creating associations such as trade unions for collective bargaining;

494

chapter d

8.13. media outlets should have editorial independence from media owners, for instance by agreeing with media owners on codes of conduct for editorial independence, to ensure that media owners do not interfere in daily editorial work or compromise impartial journalism; 8.14. journalists must be protected against physical threats or attacks because of their work. Police protection must be provided when requested by journalists who feel threatened. Prosecutors and courts must deal adequately, and in a timely manner, with cases where journalists have received threats or have been attacked; 8.15. regulatory authorities for the broadcasting media must function in an unbiased and effective manner, for instance when granting licences. Print media and Internet-based media should not be required to hold a state licence which goes beyond a mere business or tax registration; 8.16. media must have fair and equal access to distribution channels, be they technical infrastructure (for example, radio frequencies, transmission cables, satellites) or commercial (newspaper distributors, postal or other delivery services); 8.17. the state must not restrict access to foreign print media or electronic media including the Internet; 8.18. media ownership and economic influence over media must be made transparent. Legislation must be enforced against media monopolies and dominant market positions among the media. In addition, concrete positive action should be taken to promote media pluralism; 8.19. if media receive direct or indirect subsidies, states must treat those media fairly and with neutrality; 8.20. public service broadcasters must be protected against political interference in their daily management and their editorial work. Senior management positions should be refused to people with clear party political affiliations; 8.21. public service broadcasters should establish in-house codes of conduct for journalistic work and editorial independence from political sides; 8.22. “private” media should not be run or held by the state or state-controlled companies; 8.23. members of government should not pursue professional media activities while in office; 8.24. government, parliament and the courts must be open to the media in a fair and equal way; 8.25. there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists. Media should set up their own self-regulatory bodies, such as complaints commissions or ombudspersons, and decisions of such bodies should be implemented. These measures should be recognised legally by the courts;

94 Indicators for Media in a Democracy

495

8.26. journalists should set up their own professional codes of conduct and they should be applied. They should disclose to their viewers or readers any political and financial interests as well as any collaboration with state bodies such as embedded military journalism; 8.27. national parliaments should draw up periodic reports on the media freedom in their countries on the basis of the above catalogue of principles and discuss them at European level. 9. The Assembly invites the Council of Europe Commissioner for Human Rights to draw up information reports on member states where problems exist in the implementation of the above list of basic principles as regards freedom of expression. 10. The Assembly also invites media professionals and companies, as well as media associations, to apply and develop further the above list of basic principles applicable to the media.

496 95

chapter d

Electronic Democracy

Resolution 1653 (2009), adopted by the Assembly, 30 January 2009 (9th Sitting) 1. The Parliamentary Assembly recalls that the Council of Europe is the oldest pan-European institution standing for democratic principles and human rights. It has established an important acquis in this field, which constitutes a reference for the development of democratic systems. This acquis has been achieved through the elaboration of legal instruments, the development of democratic institutions and the establishment of institutional structures and practices. 2. The Assembly in particular devotes considerable attention to different aspects of democracy. Its regular debates on the state of democracy in Europe aim to identify the main concerns and shortcomings in Council of Europe member states, and to propose remedies. In this context, it recalls its Resolutions 1547 (2007) on the state of human rights and democracy in Europe and 1617 (2008) on the state of democracy in Europe – specific challenges facing European democracies: the case of diversity and migration. 3. The Council of Europe Forum for the Future of Democracy, established in 2005 by the heads of state and government, is highly instrumental in fostering the exchange of ideas, the sharing of good practices and the elaboration of proposals aimed at remedying democratic deficits. What makes this forum unique is that it is based on the active involvement of parliamentarians, representatives of governments, civil society and academia. 4. Democracy is never completely acquired or perfect; it is an ongoing process that is constantly faced with new challenges and needs to adapt itself to new situations. Perhaps the most important among these new challenges is the alienation of citizens from political processes. Traditional representative demo­ cracies tend to limit citizens’ participation to the simple act of voting. Voters, however, feel that elections do not offer real choices between genuinely different policy options and therefore they feel unable to influence the processes of political decision making. 5. The development of the information society should be considered as both a challenge and an opportunity to provide the means for enhancing democratic principles and responding to certain shortcomings and deficits of democratic systems. 6. Information and communication technologies (icts) offer great potential for improving democratic practice and participation, transparency, accountability and responsiveness of democratic institutions. They create opportunities to promote citizens’ engagement and increase empowerment and the accessibility and inclusiveness of the democratic process.

95 Electronic democracy

497

7. Electronic democracy (e-democracy) must not be regarded, however, as a tool for replacing representative democracy by participative democracy. Representative democratic systems can naturally be complemented by elements of participative democracy. Nevertheless, this must be the decision of the society and not necessarily a consequence of using icts. 8. E-democracy is primarily about democracy and not about technology. E-tools may be highly instrumental in strengthening traditional representative democracy and in contributing to the improvement of its quality. E-democracy is not a substitute for representative democracy, but should be seen as a complementary addition. 9. The technological evolution of e-democracy should be pursued in accordance with democratic principles. E-democracy can only be instrumental in a democratic environment in which human rights and the rule of law are implemented and observed. Freedom of expression and the existence of independent and pluralistic media constitute a necessary precondition for societies that wish to take full advantage of the benefits of e-democracy. 10. The risks for democracy linked to the development of icts, which include unequal access potentially resulting in e-exclusion and e-discrimination as well as possible abuses, should not be underestimated. Rules and regulatory frameworks including safeguards to protect citizens should be drawn up and implemented at an early stage. 11. Generalised access to e-tools is a necessary condition for the success of  e-democracy and for the elimination of the risk of a “technology gap”. This includes not only access in terms of equipment and affordable connections but also considerable efforts in education and training, in particular with regard to older generations and other vulnerable categories of the population. 12. E-democracy, like democracy itself, should involve all the constituents of society including citizens, politicians, political institutions, civil society and media. All of them should be engaged in the development of e-democracy from an early stage and to this end a clear political vision followed by the creation of adequate conditions are necessary. 13. The Assembly acknowledges that icts have become essential in supporting the work of legislative bodies. Furthermore, e-democracy provides elected representatives with unprecedented means of engaging in dialogue with their constituencies. The voters, for their part, have an effective tool to monitor their representatives’ actions. These possibilities add a new dimension to the traditional notions of representative and participatory democracies and, at the same time, motivate citizens to step up their participation in the political process. However, it should also be borne in mind that e-democracy tools are not a miracle cure for democratic challenges.

498

chapter d

14. The Assembly welcomes the growing introduction and systematic use of   icts in the work of public institutions at all levels of government. They increasingly serve not only to provide citizens with information and enable them to communicate with the authorities, but they are also instrumental in engaging citizens in the decision-making process (e-consultations, e-referenda, e-initiatives). 15. Local and regional levels are particularly appropriate for promoting the use of e-tools in the political process. Therefore, the Assembly welcomes the work of the Congress of Local and Regional Authorities of the Council of Europe in this field, and in particular its Resolutions 266 (2008) on e-tools: a response to the needs of local authorities, and 267 (2008) on electronic democracy and deliberative consultation on urban projects. 16. The role of civil society in introducing and promoting e-democracy is crucial. The Assembly notes with satisfaction a rapidly increasing civic mobilisation which results in e-initiatives and the creation of pressure groups using e-tools in order to influence the political process. The work of the Council of Europe’s Conference of ingos on the Code of Good Practice on Civic Participation, which includes a section on e-democracy, is to be commended. 17. The Assembly is of the opinion that the Council of Europe can considerably contribute to the further introduction and promotion of e-democracy in its member states. Further regulatory action, harmonisation and education is needed. The Assembly notes with satisfaction the work of the Ad hoc Committee on E-democracy of the Committee of Ministers (cahde), and is convinced that its work should be pursued. 18. Taking note of existing Council of Europe legal instruments in the field of democracy, including the Committee of Ministers Recommendation Rec(2004)11 on legal, operational and technical standards for e-voting and Recommendation Rec(2004)15 on e-governance, the Assembly invites the Committee of Ministers to finalise its work and adopt without delay the draft recommendation under preparation on electronic democracy. 19. The Assembly calls on all stakeholders to take into account and translate into specific action the conclusions of the Council of Europe Forum for the Future of Democracy, devoted to e-democracy, which was held in Madrid from 15 to 17 October 2008. 20. Furthermore, the Assembly calls on: 20.1. national parliaments and their members to make full use of the opportunities offered by icts with a view to improving the quality of representative democracy and in particular to: 20.1.1. develop a political vision for the application of icts in the political process, and consider the introduction of relevant legislation, particularly with

95 Electronic democracy

499

regard to the rights of citizens to launch new legislation or modify existing laws; 20.1.2. set up ad hoc committees responsible for preparing annual reports for the parliament on the current status of e-inclusion and e-democracy; 20.1.3. review national legislation with a view to introducing legal standards for using e-tools in the political process, and to eliminating the risks of their misuse, both technical and political, notably as regards human rights and security issues, including data protection and the security of documents, voting, networking and information; 20.1.4. develop a vision for innovation and the application of icts within the parliamentary setting, initiate strategic planning and ensure its effective management; 20.1.5. provide citizens with the possibility of following the work of parliament and its members, allowing for maximum transparency; 20.1.6. improve their institutions’ ability to interact with citizens and to encourage dialogue between citizens and their elected representatives; 20.1.7. develop and establish good practices as regards the active participation of citizens in the political process, including e-consultation; 20.1.8. actively seek links with, and promote, social networking activities with a view to building on the ideas about e-democracy developed within civil society; 20.1.9. continue and, where appropriate, reinforce their contribution to enhanced inter-parliamentary co-operation by electronic means, including in the framework of the Global Centre for Information and Communication Technologies in Parliament under the aegis of the Inter-Parliamentary Union, and to promote the adoption of internationally recognised data standards for sharing legislative information; 20.1.10. ensure adequate financial resources for the implementation of the above recommendations, as well as training in the use of e-tools for politicians and staff; 20.2. national authorities at all levels to make full use of the opportunities offered by icts with a view to improving communication between public institutions and citizens, and increasing the empowerment of the latter, and in particular to: 20.2.1. develop a coherent vision for the application of icts in contacts with citizens aimed at providing them with adequate information and ensuring interaction; 20.2.2. introduce a regulatory framework for this vision; 20.2.3. involve citizens in the decision-making process through systematic consultation and develop good practices;

500

chapter d

20.2.4. develop contacts with civil society with a view to making full use of their initiatives and ideas in the field of e-democracy; 20.2.5. undertake educational initiatives in society aimed at eliminating discrepancies in the access to and use of ict tools between different categories of population; 20.2.6. ensure adequate financing for the development of e-democracy and training for staff involved; 20.3. the Secretary General of the Council of Europe and the Secretary General of the Assembly to: 20.3.1. ensure that the question of e-democracy and related issues are given appropriate attention in the work of the Council of Europe and the Assembly, and that the Organisation plays a leading role in promoting e-democracy in Europe by elaborating guidelines, setting standards and proposing solutions for regulatory mechanisms and harmonisation in its member states; 20.3.2. make full use of icts in the work of the Organisation and to ensure adequate financial resources to this end; 20.3.3. set up training and co-operation programmes, including at the parliamentary level, aimed at promoting e-democracy and developing skills to make full use of it; 20.3.4. set up a website that collects the best practices and related documents and have them translated into member states’ languages; 20.3.5. support independent research to publish a yearly review about e-democracy; 20.3.6. with the co-operation of information technology companies, set up a competency centre for e-democracy to publish the results of research and developments of worldwide innovative solutions on e-government, e-inclusion and e-democracy; 20.3.7. start a campaign to disseminate the ideas of e-democracy and organise a conference to share the best practices of worldwide solutions. 21. The Assembly invites the Bureau to ask the competent Assembly committee to examine if the application of further ict instruments for the Assembly requires the adaptation of the Rules of Procedure. 22. The Assembly resolves to follow the question of e-democracy and to promote it at the parliamentary level in Council of Europe member states. To this end the Assembly decides to organise a round table on the development of e-parliaments in Europe.

96 Expansion of democracy by lowering the voting age to 16

96

501

Expansion of Democracy by Lowering the Voting Age to 16

Resolution 1826 (2011), adopted by the Assembly, 23 June 2011 (26th Sitting) 1. The Parliamentary Assembly has discussed the issue of lowering the minimum age for voting on various occasions, most recently in its Resolution 1630 (2008) on refreshing the youth agenda of the Council of Europe. 2. Demographic evolution in Europe could lead to the increasing marginalisation of young people in the political process, which risks being dominated by issues primarily of interest to older people. Such a development could endanger the stability of democracy at a time when social cohesion is more important than ever. 3. The increasingly low turnout at elections throughout Europe, in particular among the 18–24 age group, is also worrying for the future of democracy. Research indicates that the longer young people have to wait to participate in political life, the less engaged they are when they are adults. 4. In 2007, Austria became the first member of the Council of Europe and of the European Union and the first of the developed world’s democracies to adopt a voting age of 16 for all municipal, state and national elections. Germany has also lowered the voting age in some Länder. The canton of Glarus in Switzerland has lowered the voting age to 16 for local and regional elections. The issue is being debated in the parliaments of several other member states. 5. Recalling the numerous initiatives that already exist to promote the participation of young people, whether through specific institutions or by means of a co-management system, as laid down by Recommendation 1019 (1985) on the participation of young people in political and institutional life, the Assembly stresses the need to ensure that young people are well prepared for their participation in civic life and emphasises that: 5.1. the larger the share of society taking part in elections, the greater the representativeness of those elected; 5.2. 16 and 17 year-olds already have responsibilities within society, but without having the right to vote; 5.3. better participation in voting will help to make young people more aware of their responsibility for defining their position and role in society; 5.4. better education for democratic citizenship must be provided by education systems to enable future fully fledged citizens to exercise their new rights; 5.5. schools can constitute a model for democratic participation if students are involved in their decision-making process; 5.6. a voting age of 16 would be more conducive to a higher turnout of first-time voters, and thus to a higher turnout overall.

502

chapter d

6. Particular emphasis must also be placed on the principles of democracy, which call for the participation of the largest possible number of people in the political and decision-making process, on the constant concern of all democrats to extend and improve the democratic functioning of our societies, on the possibility of bringing new blood into the electorate and thus giving greater room for the expression of the concerns of the younger generation, on the importance of effectively combating the growing danger of exclusion of young people and on the desirability to do everything possible to facilitate their integration into the structures of society. 7. The Assembly therefore calls on member states to: 7.1. create the necessary preconditions for the participation of young people in civic life through education and the promotion of community involvement; 7.2. investigate the possibility of lowering the voting age to 16 years in all countries and for all kinds of elections; 7.3. examine the possibility of lowering the minimum age of eligibility to stand for different kinds of elections (local and regional bodies, parliament, senate, presidency) wherever this would seem appropriate.

97 The crisis of democracy and the role of the State

97

503

The Crisis of Democracy and the Role of the State in Today’s Europe

Resolution 1888 (2012), adopted by the Assembly, 27 June 2012 (24th Sitting) 1. In 2011, democracy was at the centre of European public debate and the object of very controversial perceptions. For those who were encouraged by the strong peoples’ movements of the Arab Spring, 2011 even became “the year of democracy.” 2. However, for many other Europeans, democracy is one of the main victims of the financial crisis which started in 2008. This confirms the conclusions of the 2008 and 2010 Assembly debates on the state of democracy in Europe, according to which European democracies are in decline and are experiencing a crisis which undermines the trust of many citizens in their political institutions. In 2012, some Assembly debates are on current “threats to democracy” posed by Europe-wide austerity programmes and their impact upon social and  democratic rights, upon local and regional authorities and, in particular,  upon young people, who stand to suffer most from the economic and financial crisis. 3. The crisis has, in particular, revealed the limits of the power of democracy and has aggravated public distrust in democracy. In a broad sense, it has been the consequence of some serious shortcomings in the functioning of democratic institutions, which were not able to anticipate, prevent, and quickly and adequately react to it without causing hardship to the people whom they are meant to serve and protect. 4. There is growing concern among Europeans who are witnessing the decline of their democratic capacity to cope with the consequences of the international financial crisis. 5. For these Europeans, it has become evident that their national democracies are unable to protect them from the negative consequences of a financial crisis. As they do not want to forego the benefits of democracy, some demand instead that democracy be developed at the transnational level in order to provide European institutions with the legitimacy to intervene and limit the market and economic forces in the public interest and wherever such forces have a negative impact upon social and democratic rights or upon the environment. 6. In order to win back the confidence of their citizens, States must meet the challenges now confronting them, which include the need to fully debate the conception, implementation and evolution of the eurozone. These challenges also include diminished trust in representative democratic bodies and political parties, the migration of millions of people within Europe or the

504

chapter d

immigration of others to Europe, the inability of the nation State to deal with certain problems beyond its control, and increased extremism and nationalism across Europe – an issue already examined by the Assembly in its Resolution 1754 (2010) on the fight against extremism: achievements, deficiencies and failures. 7. The global crisis is a consequence of many complex economic factors and regulation deficiencies, some of which result from previous policy mistakes. 8. In a number of European countries, political processes have thus recently come under extreme pressure, on the one hand from markets and international financial institutions and, on the other, from citizens. 9. Faced with the collapse of their economies and, in some cases, the risk of sovereign default, governments have implemented harsh austerity policies, including lowering of wages and social benefits and increasing taxes. Confronted with a sharp drop in living standards, which have put large segments of population near or below the poverty threshold, people in many European countries have taken to the streets to protest, at times violently, against government policies perceived as the diktat of the markets, and against being asked to pay the cost of the crisis. 10. The present problems facing democracy are the accumulated result of many years of bad governance, political short-sightedness, and unwillingness of governments and citizens to face reality. 11. In an increasingly globalised economy focused on the financial markets, there is a dissonance between the impact financial agents may have on a sovereign State’s economy and the fact that their interests may not coincide. Furthermore, the concentration of power in the hands of globally integrated financial networks carries even more risks for the stability of nation States and governments. 12. A sound State is not usually possible without a lively and strong democracy. Likewise, a strong democracy needs a sound State in order to be able to fulfil its potential and to meet the expectations of citizens, in particular as regards social justice. To this end, all means of making a State more accountable should be considered, including the development of close links with representative civil society organisations, the encouragement of a fearless press, diverse in its ownership, and the promotion of an educated citizenry. 13. After the outbreak of the crisis, States turned out to be the last resort for saving the market economy: the complete disintegration of the financial markets and private banks has only been prevented as a result of State intervention by national governments, which sharply increased sovereign debts. 14. Refinancing private companies from public budgets, and in an opaque manner, resulted in an additional tax burden on citizens and further eroded their trust in the fairness and efficiency of the State.

97 The crisis of democracy and the role of the State

505

15. In order to solve the current crisis and devise long-term stabilisation strategies, States should regain or develop capacities to regulate international financial markets. This should also include the ability and political option to tax financial transactions if there is international agreement to this end. 16. Sound States should develop strategies to reduce sovereign debts which, at the same time, preserve economic growth and social integration. This goal includes a State’s capacity to collect taxes and adapt taxation levels to the current and long-term needs of society. This also requires that tax levels are acceptable to the majority of citizens and seen as a fair sharing of tax burdens. 17. Sound States should also be capable of developing strategies for growth and the modernisation of society, particularly through investments in new infrastructure and sustainable development projects, notably for energy saving and the use of renewable energy. Wherever appropriate, planning regulations should facilitate and stimulate sustainable development. 18. For the future, sound States will need to increase their capacity for co-operation with other States since many policy areas are already too large for most nation States to regulate. Decision-making bodies should in particular be based on more democratic legitimacy at the European level, where the development of true economic governance could be the next step in the political integration process. 19. Sound States are based on strong democracies. To become strong, democracies need to make existing democratic structures more representative. This is possible with the inclusion of direct democratic elements which have to be carefully designed in order to increase citizens’ participation and to promote active citizenship, as suggested by the Parliamentary Assembly in its Resolution 1874 (2012) on the promotion of active citizenship in Europe. 20. All levels of government should be guided by the public interest rather than the interests of particular stakeholders. Sound States, capable of performing their main functions and maintaining a high level of trust among their citizens, need the strength to resist the abuse of political, administrative or judicial power, and unethical behaviour such as corruption, favouritism towards private stakeholders and undue influence by the media or interest groups, as well as being able to develop strong policies in favour of growth and social cohesion. Without permanent efforts to strengthen States’ resistance to such phenomena, citizens’ confidence in decision makers will further decrease. 21. An important reference for political decision makers are the Twelve Principles of Good Democratic Governance at Local Level, adopted by the Committee of Ministers in March 2008 in the framework of its Strategy for

506

chapter d

Innovation and Good Governance at Local Level, as these are a modern instrument and a useful model for all levels of government. 22. In order to be able to defend, in a sustainable manner, the European economic and social model and the freedom of citizens to implement European political values, there is a need to Europeanise democracy as well as to democratise Europe. 23. Against this background, the Assembly invites the member States of the Council of Europe to: 23.1. consider, for instance in the framework of the World Forum on Democracy to be held in Strasbourg in October 2012, the ways in which democracy can be strengthened by giving it a firmer foothold at all levels of the nation State and also by reinforcing it at the transnational level; 23.2. engage in a dialogue with it on the state of democracy in Europe, so as to consolidate the Council of Europe’s role as the guardian of democracy throughout greater Europe; 23.3. consider the ways in which this debate can be organised in member States in order to raise awareness and to explore ways to strengthen democracy, build sound States and democratise Europe in order to prevent it from losing further legitimacy. 24. In particular, the Assembly calls on national parliaments to fulfil their key function to uphold representative democracy in Europe, to reflect and advise on the best ways in which modern democracy might adapt. In its own work and debates it resolves to promote this aim within the 47 member States of the Council of Europe.

98 Code of Good Practice in Electoral Matters

II

Council of Europe – Venice Commission

98

Code of Good Practice in Electoral Matters – Guidelines and Explanatory Report

507

Opinion no. 190/2002, ACDL-AD (2002) 23 rev., adopted by the Venice Commission, Venice (Italy), 18–19 October 2002 (52nd Session)

Guidelines on Elections

Adopted by the Venice Commission at its 51st Plenary Session (Venice, 5–6 July 2002) I Principles of Europe’s Electoral Heritage The five principles underlying Europe’s electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals. 1 Universal Suffrage 1.1 Rule and Exceptions Universal suffrage means in principle that all human beings have the right to vote and to stand for election. This right may, however, and indeed should, be subject to certain conditions: a. Age: i. the right to vote and to be elected must be subject to a minimum age; ii. the right to vote must be acquired, at the latest, at the age of majority; iii. the right to stand for election should preferably be acquired at the same age as the right to vote and in any case not later than the age of 25, except where there are specific qualifying ages for certain offices (e.g. member of the upper house of parliament, Head of State). b. Nationality: i. a nationality requirement may apply; ii. however, it would be advisable for foreigners to be allowed to vote in local elections after a certain period of residence. c. Residence: i. a residence requirement may be imposed; ii. residence in this case means habitual residence; iii. a length of residence requirement may be imposed on nationals solely for local or regional elections;

508

chapter d

iv. the requisite period of residence should not exceed six months; a longer period may be required only to protect national minorities; v. the right to vote and to be elected may be accorded to citizens residing abroad. d. Deprivation of the right to vote and to be elected: i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions; ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence; v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. 1.2 Electoral Registers Fulfilment of the following criteria is essential if electoral registers are to be reliable: i. electoral registers must be permanent; ii. there must be regular up-dates, at least once a year. Where voters are not registered automatically, registration must be possible over a relatively long period; iii. electoral registers must be published; iv. there should be an administrative procedure – subject to judicial control – or a judicial procedure, allowing for the registration of a voter who was not registered; the registration should not take place at the polling station on election day; v. a similar procedure should allow voters to have incorrect inscriptions amended; vi. a supplementary register may be a means of giving the vote to persons who have moved or reached statutory voting age since final publication of the register. 1.3 Submission of Candidatures i. The presentation of individual candidates or lists of candidates may be made conditional on the collection of a minimum number of signatures; ii. The law should not require collection of the signatures of more than 1% of voters in the constituency concerned; iii. Checking of signatures must be governed by clear rules, particularly concerning deadlines;

98 Code of Good Practice in Electoral Matters

509

iv. The checking process must in principle cover all signatures; however, once it has been established beyond doubt that the requisite number of signatures has been collected, the remaining signatures need not be checked; v. Validation of signatures must be completed by the start of the election campaign; vi. If a deposit is required, it must be refundable should the candidate or party exceed a certain score; the sum and the score requested should not be excessive. 2 Equal Suffrage This entails: 2.1 Equal Voting Rights Each Voter has in Principle One Vote; Where the Electoral System Provides Voters with More than One Vote, Each Voter has the Same Number of Votes. 2.2 Equal Voting Power Seats Must be Evenly Distributed between the Constituencies i. This must at least apply to elections to lower houses of parliament and regional and local elections; ii. It entails a clear and balanced distribution of seats among constituencies on the basis of one of the following allocation criteria: population, number of resident nationals (including minors), number of registered voters, and possibly the number of people actually voting. An appropriate combination of these criteria may be envisaged; iii. The geographical criterion and administrative, or possibly even historical, boundaries may be taken into consideration; iv. The permissible departure from the norm should not be more than 10%, and should certainly not exceed 15% except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity); v. In order to guarantee equal voting power, the distribution of seats must be reviewed at least every ten years, preferably outside election periods; vi. With multi-member constituencies, seats should preferably be redistributed without redefining constituency boundaries, which should, where possible, coincide with administrative boundaries; vii. When constituency boundaries are redefined – which they must be in a single- member system – it must be done: – impartially; – without detriment to national minorities; – taking account of the opinion of a committee, the majority of whose members are independent; this committee should preferably include a geographer,

510

chapter d

a sociologist and a balanced representation of the parties and, if necessary, representatives of national minorities. 2.3 Equality of Opportunity a. Equality of opportunity must be guaranteed for parties and candidates alike. This entails a neutral attitude by state authorities, in particular with regard to: i. the election campaign; ii. coverage by the media, in particular by the publicly owned media; iii. public funding of parties and campaigns. b. Depending on the subject matter, equality may be strict or proportional. If it is strict, political parties are treated on an equal footing irrespective of their current parliamentary strength or support among the electorate. If it is proportional, political parties must be treated according to the results achieved in the elections. Equality of opportunity applies in particular to radio and television air-time, public funds and other forms of backing. c. In conformity with freedom of expression, legal provision should be made to ensure that there is a minimum access to privately owned audiovisual media, with regard to the election campaign and to advertising, for all participants in elections. d. Political party, candidates and election campaign funding must be transparent. e. The principle of equality of opportunity can, in certain cases, lead to a limitation of political party spending, especially on advertising. 2.4 Equality and National Minorities a. Parties representing national minorities must be permitted. b. Special rules guaranteeing national minorities reserved seats or providing for exceptions to the normal seat allocation criteria for parties representing national minorities (for instance, exemption from a quorum requirement) do not in principle run counter to equal suffrage. c. Neither candidates nor voters must find themselves obliged to reveal their membership of a national minority. 2.5 Equality and Parity of the Sexes Legal rules requiring a minimum percentage of persons of each gender among candidates should not be considered as contrary to the principle of equal suffrage if they have a constitutional basis.

98 Code of Good Practice in Electoral Matters

3

511

Free Suffrage

3.1 Freedom of Voters to Form an Opinion a. State authorities must observe their duty of neutrality. In particular, this concerns: i. media; ii. billposting; iii. the right to demonstrate; iv. funding of parties and candidates. b. The public authorities have a number of positive obligations; inter alia, they must: i. submit the candidatures received to the electorate; ii. enable voters to know the lists and candidates standing for election, for example through appropriate posting; iii. The above information must also be available in the languages of the national minorities. c. Sanctions must be imposed in the case of breaches of duty of neutrality and voters’ freedom to form an opinion. 3.2 Freedom of Voters to Express Their Wishes and Action to Combat Electoral Fraud i. voting procedures must be simple; ii. voters should always have the possibility of voting in a polling station. Other means of voting are acceptable under the following conditions; iii. postal voting should be allowed only where the postal service is safe and reliable; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad; fraud and intimidation must not be possible; iv. electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent; v. very strict rules must apply to voting by proxy; the number of proxies a single voter may hold must be limited; vi. mobile ballot boxes should only be allowed under strict conditions, avoiding all risks of fraud; vii. at least two criteria should be used to assess the accuracy of the outcome of the ballot: the number of votes cast and the number of voting slips placed in the ballot box;

512

chapter d

viii. voting slips must not be tampered with or marked in any way by polling station officials; ix. unused voting slips must never leave the polling station; x. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting; xi. military personnel should vote at their place of residence whenever possible. Otherwise, it is advisable that they be registered to vote at the polling station nearest to their duty station; xii. counting should preferably take place in polling stations; xiii. counting must be transparent. Observers, candidates’ representatives and the media must be allowed to be present. These persons must also have access to the records; xiv. results must be transmitted to the higher level in an open manner; xv. the state must punish any kind of electoral fraud. 4 Secret Suffrage a. For the voter, secrecy of voting is not only a right but also a duty, non-­ compliance with which must be punishable by disqualification of any ballot paper whose content is disclosed. b. Voting must be individual. Family voting and any other form of control by one voter over the vote of another must be prohibited. c. The list of persons actually voting should not be published. d. The violation of secret suffrage should be sanctioned. 5 Direct Suffrage The following must be elected by direct suffrage: i. at least one chamber of the national parliament; ii. sub-national legislative bodies; iii. local councils. 6 Frequency of Elections Elections must be held at regular intervals; a legislative assembly’s term of office must not exceed five years. II

Conditions for Implementing these Principles

1 Respect for Fundamental Rights a. Democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of circulation

98 Code of Good Practice in Electoral Matters

513

inside the country, freedom of assembly and freedom of association for political purposes, including the creation of political parties. b. Restrictions of these freedoms must have a basis in law, be in the public interest and comply with the principle of proportionality. 2 Regulatory Levels and Stability of Electoral Law a. Apart from rules on technical matters and detail – which may be included in regulations of the executive –, rules of electoral law must have at least the rank of a statute. b. The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law. 3

Procedural Guarantees

3.1 Organisation of Elections by an Impartial Body a. An impartial body must be in charge of applying electoral law. b. Where there is no longstanding tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level. c. The central electoral commission must be permanent in nature. d. It should include: i. at least one member of the judiciary; ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters. It may include: iii. a representative of the Ministry of the Interior; iv. representatives of national minorities. e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis (see point I.2.3.b). f. The bodies appointing members of electoral commissions must not be free to dismiss them at will. g. Members of electoral commissions must receive standard training. h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus.

514

chapter d

3.2 Observation of Elections a. Both national and international observers should be given the widest possible opportunity to participate in an election observation exercise. b. Observation must not be confined to the election day itself, but must include the registration period of candidates and, if necessary, of electors, as well as the electoral campaign. It must make it possible to determine whether irregularities occurred before, during or after the elections. It must always be possible during vote counting. c. The places where observers are not entitled to be present should be clearly specified by law. d. Observation should cover respect by the authorities of their duty of ­neutrality. 3.3 An Effective System of Appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. c. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body. d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections. g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant’s right to a hearing involving both parties must be protected.

98 Code of Good Practice in Electoral Matters

515

i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. 4 Electoral System Within the respect of the above-mentioned principles, any electoral system may be chosen.

Explanatory Report

Adopted by the Venice Commission at its 52nd Plenary Session (Venice, 18–19 October 2002) General Remarks 1. Alongside human rights and the rule of law, democracy is one of the three pillars of the European constitutional heritage, as well as of the Council of Europe. Democracy is inconceivable without elections held in accordance with certain principles that lend them their democratic status. 2. These principles represent a specific aspect of the European constitutional heritage that can legitimately be termed the “European electoral heritage”. This heritage comprises two aspects, the first, the hard core, being the constitutional principles of electoral law such as universal, equal, free, secret and direct suffrage, and the second the principle that truly democratic elections can only be held if certain basic conditions of a democratic state based on the rule of law, such as fundamental rights, stability of electoral law and effective ­procedural guarantees, are met. The text which follows – like the foregoing guidelines – is therefore in two parts, the first covering the definition and practical implications of the principles of the European electoral heritage and the second the conditions necessary for their application. I

The Underlying Principles of Europe’s Electoral Heritage

Introduction: The Principles and Their Legal Basis 3. If elections are to comply with the common principles of the European constitutional heritage, which form the basis of any genuinely democratic society, they must observe five fundamental rules: suffrage must be universal, equal, free, secret and direct. Furthermore, elections must be held periodically. All these principles together constitute the European electoral heritage. 4. Although all these principles are conventional in nature, their implementation raises a number of questions that call for close scrutiny. We would do well

516

chapter d

to identify the “hard core” of these principles, which must be scrupulously respected by all European states. 5. The hard core of the European electoral heritage consists mainly of international rules. The relevant universal rule is Article 25 (b) of the International Covenant on Civil and Political Rights, which expressly provides for all of these principles except direct suffrage, although the latter is implied.1 The common European rule is Article 3 of the Additional Protocol to the European Convention on Human Rights, which explicitly provides for the right to periodical elections by free and secret suffrage2; the other principles have also been recognised in human rights case law.3 The right to direct elections has also been admitted by the Strasbourg Court, at least implicitly.4 However, the constitutional principles common to the whole continent do not figure only in the international texts: on the contrary, they are often mentioned in more detail in the national constitutions.5 Where the legislation and practice of different countries converge, the content of the principles can be more accurately pinpointed. 1 Universal Suffrage 1.1 Rule and Exceptions 6. Universal suffrage covers both active (the right to vote) and passive electoral rights (the right to stand for election). The right to vote and stand for election may be subject to a number of conditions, all of which are given below. The most usual are age and nationality. a. There must be a minimum age for the right to vote and the right to stand for election; however, attainment of the age of majority, entailing not only rights but also obligations of a civil nature, must at least confer the right to vote. A higher age may be laid down for the right to stand for election but, save where 1 See Article 21 of the Universal Declaration of Human Rights. 2 Article 3, Right to free elections: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 3 Where universality is concerned, cf. echr No. 9267/81, judgment in Mathieu-Mohin and Clerfayt vs. Belgium, 2 March 1987, Series A vol. 113, p. 23; judgment in Gitonas and others vs. Greece, 1 July 1997, No. 18747/91, 19376/92; 19379/92, 28208/95 and 27755/95, Collected Judgments and Decisions, 1997-IV, p. 1233; re. equality, cf. aforementioned judgment of Mathieu-Mohin and Clerfayt, p. 23. 4 echr No. 24833/94, judgment in Matthews vs. the United Kingdom, 18 February 1999, Collected Judgments and Decisions 1999-I, para. 64. 5 E.g. Article 38.1 of the German Constitution, Articles 68.1 and 69.2 of the Spanish Constitution and Article 59.1 of the Romanian Constitution.

98 Code of Good Practice in Electoral Matters

517

there are specific qualifying ages for certain offices (senator, head of state), this should not be more than 25. b. Most countries’ legislations lay down a nationality requirement. However, a tendency is emerging to grant local political rights to long-standing foreign residents, in accordance with the Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level.6 It is accordingly recommended that the right to vote in local elections be granted after a certain period of residence. Furthermore, under the European integration process European citizens have been granted the right to vote and stand for election in municipal and European Parliament elections in their eu member state of residence.7 The nationality criterion can, moreover, sometimes cause problems if a state withholds citizenship from persons who have been settled in its territory for several generations, for instance on linguistic grounds. Furthermore, under the European Convention on Nationality8 persons holding dual nationality must have the same electoral rights as other nationals.9 c. Thirdly, the right to vote and/or the right to stand for election may be subject to residence requirements,10 residence in this case meaning habitual residence. Where local and regional elections are concerned, the residence requirement is not incompatible a priori with the principle of universal suffrage, if the residence period specified does not exceed a few months; any longer period is acceptable only to protect national minorities.11 Conversely, quite a few states grant their nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some special cases, e.g. where nationality is granted on an ethnic basis. Registration could take place where a voter has his or her secondary residence, if he or she resides there regularly and it appears, for example, on local tax payments; the voter must not then of course be registered where he or she has his or her principal residence. The freedom of movement of citizens within the country, together with their right to return at any time is one of the fundamental rights necessary for 6 ets 144. 7 Article 19 of the Treaty establishing the European Community. 8 ets 166, Article 17. 9 The echr does not go so far: Eur. Comm. hr No. 28858/95, judgment 25.11.96 Ganchev vs. Bulgaria, dr 87, p. 130. 10 See most recently echr No. 31891/96, judgment 7.9.99, Hilbe vs. Liechtenstein. 11 See Eur. Comm. hr No. 23450/94, judgment 15.9.97, Polacco and Garofalo vs. Italy (re. Trentino-Alto Adige).

518

chapter d

truly democratic elections.12 If persons, in exceptional cases, have been displaced against their will, they should, provisionally, have the possibility of being considered as resident at their former place of residence. d. Lastly, provision may be made for clauses suspending political rights. Such clauses must, however, comply with the usual conditions under which fundamental rights may be restricted; in other words, they must13: – be provided for by law; – observe the principle of proportionality; – be based on mental incapacity or a criminal conviction for a serious offence. Furthermore, the withdrawal of political rights may only be imposed by express decision of a court of law. However, in the event of withdrawal on grounds of mental incapacity, such express decision may concern the incapacity and entail ipso jure deprivation of civic rights. The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them, as the holding of a public office is at stake and it may be legitimate to debar persons whose activities in such an office would violate a greater public interest. 1.2 Electoral Registers 7. The proper maintenance of electoral registers is vital in guaranteeing universal suffrage. However, it is acceptable for voters not to be included automatically on the registers, but only at their request. In practice, electoral registers are often discovered to be inaccurate, which leads to disputes. Lack of experience on the part of the authorities, population shifts and the fact that few citizens bother to check the electoral registers when they are presented for inspection make it difficult to compile these registers. A number of conditions must be met if the registers are to be reliable: i. There must be permanent electoral registers. ii. There must be regular updates, at least once a year, so that municipal (local) authorities get into the habit of performing the various tasks involved in updating at the same time every year. Where registration of voters is not automatic, a fairly long time-period must be allowed for such registration. iii. The electoral registers must be published. The final update should be sent to a higher authority under the supervision of the impartial body responsible for the application of the electoral law.

12 13

See Chapter II.1 below. See e.g. echr No. 26772/95, judgment in Labita vs. Italy, 6 April 2002, paras. 201ff.

98 Code of Good Practice in Electoral Matters

519

iv. There should be an administrative procedure – subject to judicial control – or a judicial procedure enabling electors not on the register to have their names included. In some countries, the closing date for entry in the supplementary register may be, for example, 15 days before the election or election day itself. The latter case, whilst admirably broad-minded, relies on decisions made by a court obliged to sit on polling day, and is thus ill-suited to the organisational needs on which democracies are based. In any event polling stations should not be permitted to register voters on election day itself. v. Furthermore, inaccuracies in electoral registers stem both from unjustified entries and from the failure to enter certain electors. A procedure of the kind mentioned in the previous paragraph should make it possible for electors to have erroneous entries corrected. The capacity for requesting such corrections may be restricted to electors registered in the same constituency or at the same polling station. vi. A supplementary register can enable persons who have changed address or reached the statutory voting age since the final register was published to vote. 1.3 Submission of Candidatures 8. The obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties seem to have any difficulty gathering the requisite number of signatures, provided that the rules on ­signatures are not used to bar candidates from standing for office. In order to prevent such manipulation, it is preferable for the law to set a maximum 1% signature requirement.14 The signature verification procedure must follow clear rules, particularly with regard to deadlines, and be applied to all the signatures rather than just a sample15; however, once the verification shows beyond doubt that the requisite number of signatures has been obtained, the remaining signatures need not be checked. In all cases candidatures must be validated by the start of the election campaign, because late validation places some parties and candidates at a disadvantage in the campaign. 9. There is another procedure where candidates or parties must pay a deposit, which is only refunded if the candidate or party concerned goes on to win more than a certain percentage of the vote. Such practices appear to be more effective than collecting signatures. However, the amount of the deposit

14 15

cdl (99) 66, p. 9. CDL-INF (2000) 17, pp. 4–5; cdl (99) 67, pp. 7–8.

520

chapter d

and the number of votes needed for it to be reimbursed should not be excessive. 2 Equal Suffrage 10. Equality in electoral matters comprises a variety of aspects. Some concern equality of suffrage, a value shared by the whole continent, while others go beyond this concept and cannot be deemed to reflect any common standard. The principles to be respected in all cases are numerical vote equality, equality in terms of electoral strength and equality of chances. On the other hand, equality of outcome achieved, for instance, by means of proportional representation of the parties or the sexes, cannot be imposed. 2.1 Equal Voting Rights 11. Equality in voting rights requires each voter to be normally entitled to one vote, and to one vote only. Multiple voting, which is still a common irregularity in the new democracies, is obviously prohibited – both if it means a voter votes more than once in the same place and if it enables a voter to vote simultaneously in several different places, such as his or her place of current residence and place of former residence. 12. In some electoral systems, the elector nonetheless has more than one vote. In, for example, a system that allows split voting (voting for candidates chosen from more than one list), the elector may have one vote per seat to be filled; another possibility is when one vote is cast in a small constituency and another in a larger constituency, as is often the case in systems combining single-member constituencies and proportional representation at the national or regional level.16 In this case, equal voting rights mean that all electors should have the same number of votes. 2.2 Equal Voting Power 13. Equality in voting power, where the elections are not being held in one single constituency, requires constituency boundaries to be drawn in such a way that seats in the lower chambers representing the people are distributed equally among the constituencies, in accordance with a specific apportionment criterion, e.g. the number of residents in the constituency, the number of resident nationals (including minors), the number of registered electors, or possibly the number of people actually voting. An appropriate combination of these criteria is conceivable. The same rules apply to regional and local elections. When 16

See, for example, Article 64 of the Albanian Constitution and Section 1 of the German Federal Elections Act.

98 Code of Good Practice in Electoral Matters

521

this principle is not complied with, we are confronted with what is known as electoral geometry, in the form either of “active electoral geometry”, namely a distribution of seats causing inequalities in representation as soon as it is applied, or of “passive electoral geometry”, arising from protracted retention of an unaltered territorial distribution of seats and constituencies. Furthermore, under systems tending towards a non-proportional result, particularly majority (or plurality) vote systems, gerrymandering may occur, which consists in favouring one party by means of an artificial delimitation of constituencies. 14. Constituency boundaries may also be determined on the basis of geographical criteria and the administrative or indeed historic boundary lines, which often depend on geography. 15. The maximum admissible departure from the distribution criterion adopted depends on the individual situation, although it should seldom exceed 10% and never 15%, except in really exceptional circumstances (a demographically weak administrative unit of the same importance as others with at least one lower-chamber representative, or concentration of a specific national minority).17 16. In order to avoid passive electoral geometry, seats should be redistributed at least every ten years, preferably outside election periods, as this will limit the risks of political manipulation.18 17. In multi-member constituencies electoral geometry can easily be avoided by regularly allocating seats to the constituencies in accordance with the distribution criterion adopted. Constituencies ought then to correspond to administrative units, and redistribution is undesirable. Where a uninominal method of voting is used, constituency boundaries need to be redrawn at each redistribution of seats. The political ramifications of (re)drawing electoral boundaries are very considerable, and it is therefore essential that the process should be non- partisan and should not disadvantage national minorities. The long-standing democracies have widely differing approaches to this problem, and operate along very different lines. The new democracies should adopt simple criteria and easy-to-implement procedures. The best solution would be to submit the problem in the first instance to a commission comprising a majority of independent members and, preferably, a geographer, a sociologist, a balanced representation of the parties and, where appropriate, representatives of national minorities. The parliament would then make a decision on the basis of the commission’s proposals, with the possibility of a single appeal.

17 See cdl (98) 45, p. 3; cdl (99) 51, p. 8; cdl (2000) 2, p. 5; CDL-AD (2002) 9, para. 22. 18 CDL-AD (2002) 9, para. 23.

522

chapter d

2.3 Equality of Opportunity 18. Equality of opportunity should be ensured between parties and candidates and should prompt the state to be impartial towards them and to apply the same law uniformly to all. In particular, the neutrality requirement applies to the electoral campaign and coverage by the media, especially the publicly owned media, as well as to public funding of parties and campaigns. This means that there are two possible interpretations of equality: either “strict” equality or “proportional” equality. “Strict” equality means that the political parties are treated without regard to their present strength in parliament or among the electorate. It must apply to the use of public facilities for electioneering ­purposes (for example bill posting, postal services and similar, public demonstrations, public meeting rooms). “Proportional” equality implies that the treatment of political parties is in proportion to the number of votes. Equality of opportunity (strict and/or proportional) applies in particular to radio and television airtime, public funds and other forms of backing. Certain forms of backing may on the one hand be submitted to strict equality and on the other hand to proportional equality. 19. The basic idea is that the main political forces should be able to voice their opinions in the main organs of the country’s media and that all the political forces should be allowed to hold meetings, including on public thoroughfares, distribute literature and exercise their right to post bills. All of these rights must be clearly regulated, with due respect for freedom of expression, and any failure to observe them, either by the authorities or by the campaign participants, should be subject to appropriate sanctions. Quick rights of appeal must be available in order to remedy the situation before the elections. But the fact is that media failure to provide impartial information about the election campaign and candidates is one of the most frequent shortcomings arising during elections. The most important thing is to draw up a list of the media organisations in each country and to make sure that the candidates or parties are accorded sufficiently balanced amounts of airtime or advertising space, including on state radio and television stations. 20. In conformity with freedom of expression, legal provision should be made to ensure that there is a minimum access to privately owned audiovisual media, with regard to the election campaign and to advertising, for all participants in elections. 21. The question of funding, and in particular of the need for it to be transparent, will be considered later.19 Spending by political parties, particularly on 19

See below, Chapter II.3.5.

98 Code of Good Practice in Electoral Matters

523

advertising, may likewise be limited in order to guarantee equality of opportunity. 2.4 Equality and National Minorities 22. In accordance with the principles of international law, the electoral law must guarantee equality for persons belonging to national minorities, which includes prohibiting any discrimination against them.20 In particular, the national minorities must be allowed to set up political parties.21 Constituency delimitations and quorum regulations must not be such as to form an obstacle to the presence of persons belonging to minorities in the elected body. 23. Certain measures taken to ensure minimum representation for minorities either by reserving seats for them22 or by providing for exceptions to the normal rules on seat distribution, eg by waiving the quorum for the national minorities’ parties23 do not infringe the principle of equality. It may also be foreseen that people belonging to national minorities have the right to vote for both general and national minority lists. However, neither candidates nor electors must be required to indicate their affiliation with any national minority.,24,25 2.5 Equality and Parity of the Sexes 24. If there is a specific constitutional basis,26 rules could be adopted guaranteeing some degree of balance between the two sexes in elected bodies, or even parity. In the absence of such a constitutional basis, such provisions could  be considered contrary to the principle of equality and freedom of association. 25. Moreover, the scope of these rules depends on the electoral system. In a fixed party list system, parity is imposed if the number of men and women who are eligible is the same. However, if preferential voting or cross-voting is possible, voters will not necessarily choose candidates from both sexes, and 20 21 22 23

24 25 26

Article 4.1 of the Framework Convention for the Protection of National Minorities (ets 157). Re. bans on political parties and similar measures, see CDL-INF (2000) 1. As is the case in Slovenia and Croatia. As is the case in Germany and Poland. Romanian law even provides for representation of minorities’ organisations if they have secured a number of votes equivalent to 5% (only) of the average number of validly cast votes required for the election of a deputy to the lower house country-wide. Article 3 of the Framework Convention for the Protection of National Minorities (ets 57). Re. electoral law and national minorities, see CDL-INF (2000) 4. See Article 3.2 of the French Constitution; cf. judgment of 18 November 1982, Recueil des décisions du Conseil constitutionnel, 1982, pp. 66 ff.

524

chapter d

this may result in an unbalanced composition of the elected body, chosen by voters. 3 Free Suffrage 26. Free suffrage comprises two different aspects: free formation of the elector’s opinion, and free expression of this opinion, i.e. freedom of voting procedure and accurate assessment of the result. 3.1 Freedom of Voters to form an Opinion a. Freedom of voters to form an opinion partly overlaps with equality of opportunity. It requires the state – and public authorities generally – to honour their duty of even- handedness, particularly where the use of the mass media, billposting, the right to demonstrate on public thoroughfares and the funding of parties and candidates are concerned. b. Public authorities also have certain positive obligations. They must submit lawfully presented candidatures to the citizens’ votes. The presentation of specific candidatures may be prohibited only in exceptional circumstances, where necessitated by a greater public interest. Public authorities must also give the electorate access to lists and candidates standing for election by means, for instance, of appropriate billposting. The information in question must also be available in the languages of national minorities, at least where they make up a certain percentage of the population. Voters’ freedom to form an opinion may also be infringed by individuals, for example when they attempt to buy votes, a practice which the state is obliged to prevent or punish effectively. c. In order to ensure that the rules relating to voters’ freedom to form an opinion are effective, any violation of the foregoing rules must be punished. 3.2 Freedom of Voters to Express Their Wishes and Combating Electoral Fraud 3.2.1 In General 27. Freedom of voters to express their wishes primarily requires strict observance of the voting procedure. In practice, electors should be able to cast their votes for registered lists or candidates, which means that they must be supplied with ballot papers bearing their names and that they must be able to deposit the ballot papers in a ballot box. The state must make available the necessary premises for electoral operations. Electors must be protected from threats or constraints liable to prevent them from casting their votes or from casting them as they wish, whether such threats come from the authorities or from individuals; the state is obliged to prevent and penalise such practices.

98 Code of Good Practice in Electoral Matters

525

28. Furthermore, the voter has the right to an accurate assessment of the result of the ballot; the state should punish any election fraud. 3.2.2 Voting Procedures 29. Voting procedures play a vital role in the overall electoral process because it is during voting that election fraud is most likely to occur. 30. In some countries the implementation of democratic practices requires a radical change of attitudes, which must be actively promoted by the authorities. In this respect some measures have to be taken to control the habits and reflexes which have a negative impact on the elections. Most of these irregularities, such as “family voting”27 occur during the voting procedure. 31. All these observations lead us to the following conclusion: the voting procedure must be kept simple. Compliance is therefore recommended with the criteria set out in the ensuing paragraphs. 32. If the polling station officials represent a proper balance of political opinion, fraud will be difficult, and the fairness of the ballot should be judged by two main criteria alone: the number of electors who have cast votes compared with the number of ballot papers in the ballot box. The first measure can be determined by the number of signatures in the electoral register. Human nature being what it is (and quite apart from any intention to defraud), it is difficult to achieve total congruity between the two measures, and any further controls such as numbering the stubs of ballot papers or comparing the total number of ballot papers found in the ballot box plus those cancelled and unused with the number of ballot papers issued to the polling station may give some indication, but one should be under no illusion that the results of these various measures will coincide perfectly. The risk in multiplying the measures used is rather that the differences in the totals, and in the end the real irregularities, will not be taken seriously. It is better to have strict control over two measures than slack – and hence ineffective – control over a larger number of variables. 33. Any unused ballot papers should remain at the polling station and should not be deposited or stored in different premises. As soon as the station opens, the ballot papers awaiting use must be in full view on the table of the senior station official for instance. There should be no others stored in cupboards or other places. 34. The signing and stamping of ballot papers should not take place at the point when the paper is presented to the voter, because the signatory or the person affixing the stamp might mark the paper so that the voter could be 27

See section I.4 below.

526

chapter d

identified when it came to counting the votes, which would violate the secrecy of the ballot. 35. The voter should collect his or her ballot paper and no one else should touch it from that point on. 36. It is important that the polling station officials include multi-party representatives and that observers assigned by the candidates be present. 37. Voters should always have the possibility of voting in a polling station; other means of voting are, however, acceptable on certain conditions, as indicated below. 3.2.2.1 Postal Voting or Proxy Voting in Certain Circumstances 38. Postal voting and proxy voting are permitted in countries throughout the western world, but the pattern varies considerably. Postal voting, for instance, may be widespread in one country and prohibited in another owing to the danger of fraud. It should be allowed only if the postal service is secure – in other words, safe from intentional interference – and reliable, in the sense that it functions properly. Proxy voting is permissible only if subject to very strict rules, again in order to prevent fraud; the number of proxies held by any one elector must be limited. 39. Neither of these practices should be widely encouraged if problems with the postal service are added to other difficulties inherent in this kind of voting, including the heightened risk of “family voting”. Subject to certain precautions, however, postal voting can be used to enable hospital patients, persons in custody, persons with restricted mobility and electors resident abroad to vote, in so far as there is no risk of fraud or intimidation. This would dispense with the need for a mobile ballot box, which often causes problems and risks of fraud. Postal voting would take place under a special procedure a few days before the election. 40. The use of mobile ballot boxes is undesirable because of the attendant serious risk of fraud. Should they nonetheless be used, strict conditions should be imposed to prevent fraud, including the attendance of several members of the polling station election commission representing different political groupings. 3.2.2.2 Military Voting 41. Where servicemen cannot return home on polling day, they should preferably be registered at polling stations near their barracks. Details of the servicemen concerned are sent by the local command to the municipal authorities who then enter the names in the electoral list. The one exception to this rule is

98 Code of Good Practice in Electoral Matters

527

when the barracks are too far from the nearest polling station. Within the military units, special commissions should be set up to supervise the pre- election period, in order to prevent the risk of superior officers’ imposing or ordering certain political choices. 3.2.2.3 Mechanical and Electronic Voting Methods 42. Several countries are already using, or are preparing to introduce mechanical and electronic voting methods. The advantage of these methods becomes apparent when a number of elections are taking place at the same time, even though certain precautions are needed to minimise the risk of fraud, for example by enabling the voter to check his or her vote immediately after casting it. Clearly, with this kind of voting, it is important to ensure that ballot papers are designed in such a way as to avoid confusion. In order to facilitate verification and a recount of votes in the event of an appeal, it may also be provided that a machine could print votes onto ballot papers; these would be placed in a sealed container where they cannot be viewed. Whatever means used should ensure the confidentiality of voting. 43. Electronic voting methods must be secure and reliable. They are secure if the system can withstand deliberate attack; they are reliable if they can function on their own, irrespective of any shortcomings in the hardware or software. Furthermore, the elector must be able to obtain confirmation of his or her vote and, if necessary, correct it without the secrecy of the ballot being in any way violated. 44. Furthermore, the system’s transparency must be guaranteed in the sense that it must be possible to check that it is functioning properly. 3.2.2.4 Counting 45. The votes should preferably be counted at the polling stations themselves, rather than in special centres. The polling station staff are perfectly capable of performing this task, and this arrangement obviates the need to transport the ballot boxes and accompanying documents, thus reducing the risk of substitution. 46. The vote counting should be conducted in a transparent manner. It is admissible that voters registered in the polling station may attend; the presence of national or international observers should be authorised. These persons must be allowed to be present in all circumstances. There must be enough copies of the record of the proceedings to distribute to ensure that all the aforementioned persons receive one; one copy must be immediately posted on the notice-board, another kept at the polling station and a third sent to the commission or competent higher authority.

528

chapter d

47. The relevant regulations should stipulate certain practical precautions as regards equipment. For example, the record of the proceedings should be completed in ballpoint pen rather than pencil, as text written in pencil can be erased. 48. In practice, it appears that the time needed to count the votes depends on the efficiency of the presiding officer of the polling station. These times can vary markedly, which is why a simple tried and tested procedure should be set out in the legislation or permanent regulations which appear in the training manual for polling station officials. 49. It is best to avoid treating too many ballot papers as invalid or spoiled. In case of doubt, an attempt should be made to ascertain the voter’s intention. 3.2.2.5 Transferring the Results 50. There are two kinds of results: provisional results and final results (before all opportunities for appeal have been exhausted). The media, and indeed the entire nation, are always impatient to hear the initial provisional results. The speed with which these results are relayed will depend on the country’s communications system. The polling station’s results can be conveyed to the electoral district (for instance) by the presiding officer of the polling station, accompanied by two other members of the polling station staff representing opposing parties, in some cases under the supervision of the security forces, who will carry the records of the proceedings, the ballot box, etc. 51. However much care has been taken at the voting and vote-counting stages, transmitting the results is a vital operation whose importance is often overlooked; it must therefore be effected in an open manner. Transmission from the electoral district to the regional authorities and the Central Electoral Commission – or other competent higher authorities – can be done by fax. In that case, the records will be scanned and the results can be displayed as and when they come in. Television can be used to broadcast these results but once again, too much transparency can be a dangerous thing if the public is not ready for this kind of piecemeal reporting. The fact is that the initial results usually come in from the towns and cities, which do not normally or necessarily vote in the same way as rural areas. It is important therefore to make it clear to the public that the final result may be quite different from, or even completely opposite to, the provisional one, without there having been any question of foul play. 4 Secret Suffrage 52. Secrecy of the ballot is one aspect of voter freedom, its purpose being to shield voters from pressures they might face if others learned how they had

98 Code of Good Practice in Electoral Matters

529

voted. Secrecy must apply to the entire procedure – and particularly the casting and counting of votes. Voters are entitled to it, but must also respect it themselves, and non-compliance must be punished by disqualifying any ballot paper whose content has been disclosed.28 53. Voting must be individual. Family voting, whereby one member of a given family can supervise the votes cast by the other members, infringes the secrecy of the ballot; it is a common violation of the electoral law. All other forms of control by one voter over the vote of another must also be prohibited. Proxy voting, which is subject to strict conditions, is a separate issue.29 54. Moreover, since abstention may indicate a political choice, lists of persons voting should not be published. 55. Violation of the secrecy of the ballot must be punished, just like violations of other aspects of voter freedom. 5 Direct Suffrage 56. Direct election of one of the chambers of the national parliament by the people is one aspect of Europe’s shared constitutional heritage. Subject to such special rules as are applicable to the second chamber, where there is one, other legislative bodies, like the Parliaments of Federate States,30 should be directly elected, in accordance with Article 3 of the Additional Protocol to the European Convention on Human Rights. Nor can local self- government, which is a vital component of democracy, be conceived of without local elected bodies.31 Here, local assemblies include all infra-national deliberative bodies.32 On the other hand, even though the President of the Republic is often directly elected, this is a matter for the Constitution of the individual state. 6 Frequency of Elections 57. Both the International Covenant on Civil and Political Rights33 and the Additional Protocol to the European Convention on Human Rights34 provide that elections must be held periodically. General elections are usually held at 28 cdl (2000) 2, p. 9. 29 See above, Chapter I.3.2.2.1. 30 See echr No. 9267/81, judgment Mathieu-Mohin and Clerfayt vs. Belgium, 2 March 1987, Series A No. 113, p. 23; Eur. Comm. hr No. 27311/95, 11.9.97, Timke vs. Germany, dr 82, p. 15; No. 7008/75, 12.7.76, X vs. Austria, dr 6, p. 120. 31 Article 3 of the European Charter of Local self-government (ets 122). 32 Article 13 of the European Charter of Local self-government. 33 Article 25 b. 34 Article 3.

530

chapter d

four- or five-yearly intervals, while longer periods are possible for presidential elections, although the maximum should be seven years. II Conditions for Implementing the Principles 58. The underlying principles of European electoral systems can only be guaranteed if certain general conditions are fulfilled. The first, general, condition is respect for fundamental human rights, and particularly freedom of expression, assembly and association, without which there can be no true democracy. Second, electoral law must enjoy a certain stability, protecting it against party political manipulation; Last and above all, a number of procedural guarantees must be provided, especially as regards the organisation of polling. 59. Furthermore, elections are held not in a vacuum but within the context of a specific electoral system and a given party system. This second section will conclude with a number of comments on this aspect, particularly on the relationship between electoral and party systems. 1 Respect for Fundamental Rights 60. The holding of democratic elections and hence the very existence of democracy are impossible without respect for human rights, particularly the freedom of expression and of the press and the freedom of assembly and association for political purposes, including the creation of political parties. Respect for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental rights must comply with the European Convention on Human Rights and, more generally, with the requirement that they have a basis in law, are in the general interest and respect the principle of proportionality. 61. The fact is that many countries have legal limitations on free speech, which, if restrictively interpreted, may just be acceptable – but may generate abuses in countries with no liberal, democratic tradition. In theory, they are intended to prevent “abuses” of free speech by ensuring, for example, that candidates and public authorities are not vilified, and even protecting the constitutional system. In practice, however, they may lead to the censoring of any statements which are critical of government or call for constitutional change, although this is the very essence of democratic debate. For example, European standards are violated by an electoral law which prohibits insulting or defamatory references to officials or other candidates in campaign documents, makes it an offence to circulate libellous information on candidates, and makes candidates themselves liable for certain offences committed by their supporters. The insistence that materials intended for use in election campaigns must be

98 Code of Good Practice in Electoral Matters

531

submitted to electoral commissions, indicating the organisation which ordered and produced them, the number of copies and the date of publication, constitutes an unacceptable form of censorship, particularly if electoral commissions are required to take action against illegal or inaccurate publications. This is even more true if the rules prohibiting improper use of the media during electoral campaigns are rather vague. 62. Another very important fundamental right in a democracy is freedom of movement within the country, together with the right for nationals to return to their country at any time. 2 Regulatory Levels and Stability of Electoral Law 63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy.35 Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections. 64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation. 65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests. 66. One way of avoiding manipulation is to define in the Constitution or in a text higher in status than ordinary law the elements that are most exposed (the electoral system itself, the membership of electoral commissions, constituencies or rules on drawing constituency boundaries). Another, more flexible, solution would be to stipulate in the Constitution that, if the electoral law is amended, the old system will apply to the next election – at least if it takes place within the coming year – and the new one will take effect after that.

35

On the importance of credibility of the electoral process, see for example cdl (99) 67, p. 11; on the need for stability of the law, see cdl (99) 41, p. 1.

532

chapter d

67. For the rest, the electoral law should normally have the rank of statute law. Rules on implementation, in particular those on technical questions and matters of detail, can nevertheless be in the form of regulations. 3 Procedural Safeguards 3.1 Organisation of Elections by an Impartial Body 68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results. 69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior. 70. However, in states with little experience of organising pluralist elections, there is too great a risk of government’s pushing the administrative authorities to do what it wants. This applies both to central and local government – even when the latter is controlled by the national opposition. 71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity. 72. According to the reports of the Bureau of the Parliamentary Assembly of the Council of Europe on election observations, the following shortcomings concerning the electoral commissions have been noted in a number of member States: lack of transparency in the activity of the central electoral commission; variations in the interpretation of counting procedure; politically polarised election administration; controversies in appointing members of the Central Electoral Commission; commission members nominated by a state institution; the dominant position of the ruling party in the election administration. 73. Any central electoral commission must be permanent, as an administrative institution responsible for liaising with local authorities and the other lower-level commissions, e.g. as regards compiling and updating the electoral lists. 74. The composition of a central electoral commission can give rise to debate and become the key political issue in the drafting of an electoral law. Compliance with the following guidelines should facilitate maximum impartiality and competence on the part of the commission. 75. As a general rule, the commission should consist of:

98 Code of Good Practice in Electoral Matters

533

– a judge or law officer: where a judicial body is responsible for administering the elections, its independence must be ensured through transparent proceedings. Judicial appointees should not come under the authority of those standing for office; – representatives of parties already represented in parliament or which have won more than a certain percentage of the vote. Political parties should be represented equally in the central electoral commission; “equally” may be interpreted strictly or proportionally, that is to say, taking or not taking account of the parties’ relative electoral strengths.36 Moreover, party delegates should be qualified in electoral matters and should be prohibited from campaigning. 76. In addition, the electoral commission may include: – representatives of national minorities; their presence is desirable if the national minority is of a certain importance in the territory concerned; – a representative of the Ministry of the Interior. However, for reasons connected with the history of the country concerned, it may not always be appropriate to have a representative of the Ministry of the Interior in the commission. During its election observation missions the Parliamentary Assembly has expressed concern on several occasions about transfers of responsibilities from a fully-fledged multi-party electoral commission to an institution subordinate to the executive. Nevertheless, co-operation between the central electoral commission and the Ministry of the Interior is possible if only for practical reasons, e.g. transporting and storing ballot papers and other equipment. For the rest, the executive power should not be able to influence the membership of the electoral commissions.37 77. Broadly speaking, bodies that appoint members to electoral commissions should not be free to recall them, as it casts doubt on their independence. Discretionary recall is unacceptable, but recall for disciplinary reasons is ­permissible – provided that the grounds for this are clearly and restrictively specified in law (vague references to “acts discrediting the commission”, for example, are not sufficient). 78. In the long-standing democracies where there are no electoral commissions but where another impartial body is competent in electoral matters, political parties must be able to observe the work of that body. 79. The composition of the central electoral commission is certainly important, but no more so than its mode of operation. The commission’s rules of 36 37

See above, Chapter I.2.3. Cf CDL-AD (2002) 7, para. 5, 7 ff, 54.

534

chapter d

procedure must be clear, because commission chairpersons have a tendency to let members speak, which the latter are quick to exploit. The rules of procedure should provide for an agenda and a limited amount of speaking time for each member – e.g. a quarter of an hour; otherwise endless discussions are liable to obscure the main business of the day. 80. There are many ways of making decisions. It would make sense for decisions to be taken by a qualified (e.g. 2/3) majority, so as to encourage debate between the majority and at least one minority party. Reaching decisions by consensus is preferable. 81. The meetings of the central electoral commission should be open to everyone, including the media (this is another reason why speaking time should be limited). Any computer rooms, telephone links, faxes, scanners, etc. should be open to inspection. 82. Other electoral commissions operating at regional or constituency level should have a similar composition to that of the central electoral commission. Constituency commissions play an important role in uninominal voting systems because they determine the winner in general elections. Regional commissions also play a major role in relaying the results to the central electoral commission. 83. Appropriate staff with specialised skills38 are required to organise elections. Members of central electoral commissions should be legal experts, political scientists, mathematicians or other people with a good understanding of electoral issues. 84. Members of electoral commissions have to receive standardised training at all levels of the election administration. Such training should also be made available to the members of commissions appointed by political parties. There have been several cases of commissions lacking qualified and trained election staff. 85. The electoral law should contain an article requiring the authorities (at every level) to meet the demands and needs of the electoral commission. Various ministries and other public administrative bodies, mayors and town hall staff may be directed to support the election administration by carrying out the administrative and logistical operations of preparing for and conducting the elections. They may have responsibility for preparing and distributing the electoral registers, ballot papers, ballot boxes, official stamps and other required material, as well as determining the arrangements for storage, distribution and security. 38 See cdl (98) 10, p. 5.

98 Code of Good Practice in Electoral Matters

535

3.2 Observation of Elections 86. Observation of elections plays an important role as it provides evidence of whether the electoral process has been regular or not. 87. There are three different types of observer: partisan national observers, non-partisan national observers and international (non-partisan) observers. In practice the distinction between the first two categories is not always obvious. This is why it is best to make the observation procedure as broad as possible at both the national and the international level. 88. Observation is not confined to the actual polling day but includes ascertaining whether any irregularities have occurred in advance of the elections (e.g. by improper maintenance of electoral lists, obstacles to the registration of candidates, restrictions on freedom of expression, and violations of rules on access to the media or on public funding of electoral campaigns), during the elections (e.g. through pressure exerted on electors, multiple voting, violation of voting secrecy, etc.) or after polling (especially during the vote counting and announcement of the results). Observation should focus particularly on the authorities’ regard for their duty of neutrality. 89. International observers play a primordial role in states which have no established tradition of impartial verification of the lawfulness of elections. 90. Generally, international as well as national observers must be in a position to interview anyone present, take notes and report to their organisation, but they should refrain from making comments. 91. The law must be very clear as to what sites observers are not entitled to visit, so that their activities are not excessively hampered. For example, an act authorising observers to visit only sites where the election (or voting) takes place could be construed by certain polling stations in an unduly narrow manner.39 3.3 An Effective System of Appeal 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election,

39

Re. election observation, see Handbook for Observers of Elections, Council of Europe, 1996.

536

chapter d

the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding. 93. There are two possible solutions: – appeals may be heard by the ordinary courts, a special court or the constitutional court; – appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. 94. Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible. 95. Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so.40 It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases. 97. It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an 40

cdl (98) 45, p. 11.

98 Code of Good Practice in Electoral Matters

537

electoral commission, or where the powers of different courts – e.g. the ordinary courts and the constitutional court – are not clearly differentiated. Example: Central Election Commission ↑ Regional commission ↑ Constituency Election commission ↑ Polling station (on election day)

→

Supreme Court

→

Appeal Court

98. Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in co-operation with the electoral commissions, can be dealt with by courts of first instance. 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100. The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102. Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions. 103. Some points deserve to be developed. 3.4 Organisation and Operation of Polling Stations 104. The quality of the voting and vote-counting systems and proper compliance with the electoral procedures depend on the mode of organisation and

538

chapter d

operation of the polling stations. The reports of the Bureau of the Assembly on the observation of elections in different countries have revealed a series of logistical irregularities. For example, significant differences between polling stations across different regions of the same State were noted. 105. Assembly observation missions have also noticed several cases of technical irregularities such as wrongly printed or stamped ballot boxes, overly complex ballot papers, unsealed ballot boxes, inadequate ballot papers or boxes, misuse of ballot boxes, insufficient means of identification of voters and absence of local observers. 106. All these irregularities and shortcomings, in addition to political party electioneering inside the polling station and police harassment, can seriously vitiate the voting process, or indeed undermine its integrity and validity. 3.5 Funding 107. Regulating the funding of political parties and electoral campaigns is a further important factor in the regularity of the electoral process. 108. First of all, funding must be transparent; such transparency is essential whatever the level of political and economic development of the country concerned. 109. Transparency operates at two levels. The first concerns campaign funds, the details of which must be set out in a special set of carefully maintained accounts. In the event of significant deviations from the norm or if the statutory expenditure ceilings are exceeded, the election must be annulled. The second level involves monitoring the financial status of elected representatives before and after their term in office. A commission in charge of financial transparency takes formal note of the elected representatives’ statements as to their finances. The latter are confidential, but the records can, if necessary, be forwarded to the public prosecutor’s office. 110. In unitary states, any expenses incurred by local authorities in connection with the running of a national election, the payment of election commission members, the printing of ballot papers, etc., should normally be borne by the central state. 111. It should be remembered that in the field of public funding of parties or campaigns the principle of equality of opportunity applies (“strict” or “proportional” equality).41 All parties represented in parliament must in all cases qualify for public funding. However, in order to ensure equality of opportunity for all the different political forces, public funding might also be extended to political formations 41

See section I.2.3 above.

98 Code of Good Practice in Electoral Matters

539

that represent a large section of the electorate and put up c­ andidates for election. The funding of political parties from public funds must be accompanied by supervision of the parties’ accounts by specific public bodies (e.g. the Auditor General’s Department). States should encourage a policy of financial openness on the part of political parties receiving public funding.42 3.6 Security 112. Every electoral law must provide for intervention by the security forces in the event of trouble. In such an event, the presiding officer of the polling station (or his or her representative) must have sole authority to call in the police. It is important to avoid extending this right to all members of the polling station commission, as what is needed in such circumstances is an on-the-spot decision that is not open to discussion. 113. In some states, having a police presence at polling stations is a national tradition, which, according to observers, does not necessarily trigger unrest or have an intimidating effect on voters. One should note that a police presence at polling stations is still provided for in the electoral laws of certain western states, even though this practice has changed over time.

Conclusion

114. Compliance with the five underlying principles of the European electoral heritage (universal, equal, free, secret and direct suffrage) is essential for democracy. It enables democracy to be expressed in different ways but within certain limits. These limits stem primarily from the interpretation of the said principles; the present text lays out the minimum rules to be followed in order to ensure compliance. Second, it is insufficient for the electoral law (in the narrow sense) to comprise rules that are in keeping with the European electoral principles: the latter must be placed in their context, and the credibility of the electoral process must be guaranteed. First, fundamental rights must be respected; and second, the stability of the rules must be such as to exclude any suspicion of manipulation. Lastly, the procedural framework must allow the rules laid down to be implemented effectively.

42

For further details on funding of political parties, see CDL-INF (2001) 8.

540 99

chapter d

Report on the Role of the Opposition in a Democratic Parliament

Study no. 497/2008, CDL-AD(2010)025, adopted by the Venice Commission at its 84th Plenary Session, Venice (Italy), 15 to 16 October 2010 by Ms Angelika NUSSBERGER (Substitute Member, Germany), Mr Ergun ÖZBUDUN (Member, Turkey), Mr Fredrik SEJERSTED (Substitute Member, Norway) 1 Introduction 1. On 23 January 2008 the Parliamentary Assembly of the Council of Europe (pace) adopted Resolution 1601 (2008) on “Procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament”. The resolution emphasizes the role of the political opposition as “an essential component of a well-functioning democracy”, and in effect advocates a certain institutionalization of parliamentary opposition rights, by laying down a number of guidelines from which the parliaments of the member states are invited to draw inspiration. 2. The resolution is based on a report that gives a comprehensive overview of various forms of parliamentary opposition, recent developments and debates at the national and European level, and the many rights and responsibilities that are or may be related to opposition mps and party groups in a democratic parliament. 3. As part of the resolution the Assembly invited the European Commission for Democracy through Law (the Venice Commission) to “undertake a study on the role of the opposition in a democratic society”. 4. On this basis the Venice Commission decided to undertake a study with the aim of producing a report further examining the subject, and thus supplementing the resolution of the Assembly. 5. The present report has been prepared on the basis of the contribution from Ms Nussberger, Messrs Ozbudun and Sejersted (CDL-DEM(2009)001, CDLDEM(2009)002, CDL-DEM(2010)001 respectively). 6. Preliminary discussions on earlier drafts took place in the Sub commission on Democratic Institutions on 11 June 2009 and 14 October 2010. The report was adopted at the 84th Plenary Session of the Commission (Venice 15–16 October 2010). 2 The Scope of the Study 7. The general subject of “the role of the opposition in a democratic society” is a very wide theme, which goes to the heart of democratic theory, and which has been discussed by constitutional and political scholars for a long time. From the constitutional perspective it raises a broad range of issues, starting

99 Report on the Role of the Opposition

541

with the basic democratic structures of a constitution, principles of equal and universal suffrage, free and fair elections, the freedom to form and join political organizations, freedom of expression, fair and equal conditions for political parties to compete for power, access to independent media, and a number of other elements, many of which are protected both at the national constitutional level and at the European level, by the echr and other legally binding treaties and obligations. 8. From a political science perspective the subject raises issues of democratic stability, maturity and tolerance, of distribution of political and economic resources, and of different traditions and institutional frameworks in national political cultures. 9. The subject of Resolution 1601 (2008) of the Assembly was not political opposition in general, but the role of “the opposition in a democratic ­parliament” – in other words, the parliamentary opposition. Furthermore the resolution is primarily concerned with questions of legal and formal institutionalisation and protection of parliamentary opposition, not with the broader issues of political culture, economic resources etcetera. Even so it is still a wide subject, to which the Venice Commission will also limit its observations in the present report. 10. The Venice Commission in general endorses Resolution 1601 (2008) by the pace, as a groundbreaking new soft law instrument on a subject of great importance for the development of democratic parliamentary procedures. The following comments are of a supporting and supplementary nature. 11. The defining characteristic of the “opposition” is that it is not in power, and that it opposes (more or less strongly) those who are. The parliamentary opposition then consists of those political parties that are represented in parliament, but not in government. In most (but not all) parliamentary systems the government will usually enjoy the direct support of the majority. This means that the issue of rights of the parliamentary opposition is first and foremost a question of political minority rights. This may typically include procedural rights of information, representation and participation, speaking and voting rights, the right to table bills and motions, rights of supervision and scrutiny of the executive, and protection against mistreatment by the majority. But it does not include the competence to adopt substantive decisions, which in a democratic system rests with the elected parliamentary majority. 12. The issue of how far the parliamentary opposition should have legal rights can therefore be seen as a question of the balance to be struck between legitimate majority and minority political interests represented in parliament. To the extent that the opposition is not guaranteed sufficient basic rights, then

542

chapter d

this may weaken or destroy the democratic functioning and legitimacy of the system. On the other hand, if the opposition is given broad rights and powers, then this may weaken or destroy the possibility of the majority and the government to effectively run the country. 13. Finding the best balance between parliamentary majority rule and minority rights is something that has to be done at the national level, within the national political and constitutional tradition and context. But there are questions of common comparative interest, which may be identified and discussed, as inspiration for elaborating good parliamentary regulation at the national level. 14. The basic questions in this study are what kind of formal rights the parliamentary opposition or minority should or may have and how these can best be legally regulated and protected. The underlying idea is that a certain degree of formal institutionalisation of minority rights and competences may contribute to the robustness and well functioning of democracy in Europe. This however can be done in many ways, and should be tailored to the national constitutional tradition. 15. On a general level, there is today a widespread common European model of democracy, in which the political opposition have substantial parliamentary representation, and within parliament wide opportunity for opposing and offering alternatives to the politics of the majority and the government. This model rests on a European democratic culture and tradition that has developed gradually over a long period of time, with occasional setbacks, but with great progress in the last decades, in particular in the new democracies of Central and Eastern Europe, but also in the more established parliamentary democracies of Western Europe. 16. In addition to the democratic culture, the position of the opposition is also to a considerable extent legally enshrined and protected, both at the European and the national level. At the European level the echr guarantees basic rights without which political opposition would be very difficult – such as freedom of opinion and expression, freedom of assembly and association, and the right to free and fair elections. The echr however does not explicitly guarantee the rights of the parliamentary opposition (or minorities) as such, and can only to a limited extent be interpreted so as to infer such rights in any detail.1 Neither 1 There is however ECtHR case law of relevance on specific issues, such as parliamentary immunity, cf. inter alia A. v. United Kingdom, Judgment of 17 December 2002 (35373/97) and Kart v. Turkey, Judgment of 3 December 2009 (89175/05), see below section 4.5.; The role of members of Parliament and the opposition, see Tanase v. Molodova, no. 7/08, Judgment of 27 April 2010; Freedom of expression for elected representatives, see Christian Democratic people’s party v. Moldova, no. 28793/02, Judgment of 14 February 2006; Diversity and expression

99 Report on the Role of the Opposition

543

are there other binding instruments of international law that provide such regulation. On the level of soft law, the recent Resolution 1601 (2008) by the pace is so far the most extensive and important instrument. At the national level there are some issues relevant to the position of the parliamentary opposition that are regulated in a more or less similar manner in most or many of the Member States of the Council of Europe. But other issues are regulated very differently, if at all, and there is no common model. 17. The basis for the following assessments by the Venice Commission is therefore not of a binding legal nature, and the study is rather to be seen as an attempt to formulate some common challenges, and point out how these may or have been solved at the national level. The study is to some extent comparative, in that it draws on the experience of the Venice Commission on national constitutional law. It should however be emphasized that the Commission has not had the capacity to conduct a full comparative examination on the subject. 18. The Venice Commission has not previously given any general opinion on the role of the opposition. It has however, dealt with the issue in a countryspecific report “On the Draft Law on the Parliamentary Opposition in Ukraine” from 2007.2 Furthermore the Venice Commission has given opinions and reports, general and country-specific, on a number of issues that are directly or indirectly of relevance for the role of the political opposition in a parliamentary democracy, including (but not exhaustive) on electoral thresholds,3 the role and regulation of political parties, guidelines on prohibition and dissolution of political parties and analogous measures,4 guidelines on legislation on

of a minority view, see Buscarini and others v. San Marino, no. 24645/94, Judgment of 18 February 1999; Parliamentary privilege, see Demicoli v. Malta, no. 13057/87, Judgment of 27 August 1991. 2 Cf. “Opinion on the draft law on the parliamentary opposition in Ukraine”, CDL-AD(2007)019, adopted in June 2007, and also the earlier preliminary opinion of March 2007, CDL-AD(2007)015. In 2007 the Commission also received a report from the Spanish substitute member, Mr Sanchez Navarro “On the role and legal protection of the opposition”, cf. CDL-DEM(2007)002rev. 3 See the reports on thresholds and other features of electoral systems which ban parties from access to Parliament, CDL-AD (2008)037 and CDL-AD (2010)007. In the electoral field, the reference document is the Code of good practice in electoral matters, CDL-AD(2002)023rev. For a compilation of the main Venice Commisison texts, see Electoral Law, Council of Europe Publishing, isbn 978-92-871-6424-7. 4 Cf. Guidelines on prohibition of political parties and analogous measures, CDL-INF(2000)001; Guidelines and explanatory report on legislation on political parties: some specific issues, CDL-AD(2004)007rev.

544

chapter d

political parties,5 protection of political parties against prohibition,6 legislative initiative,7 imperative mandate,8 constitutional amendment9 and parliamentary immunity.10 These will in the following be referred to where appropriate. 19. The report will cover the following elements: – An analysis of the role and functions of parliamentary opposition – An overview of the different ways in which parliamentary opposition and minority rights can be legally regulated and protected – An analysis of the main categories of parliamentary opposition and minority rights, including (i) procedural rights of participation, (ii) special powers of supervision and scrutiny, (iii) the right to block or delay majority decisions, (iv) the right to require constitutional review of laws and other parliamentary majority acts, and (iv) protection against persecution and abuse – A brief discussion on the duties and responsibilities of a democratic parliamentary opposition 20. The report is confined to the role of the opposition in national parliaments, and will not address issues specifically related to regional parliaments or international institutions such as the European Parliament in the eu or the Parliamentary Assembly of the Council of Europe (pace). Furthermore it will not address the particular characteristics of political systems where all the major parties are represented in government, such as in Switzerland. 3 The Parliamentary Opposition – Role and Functions 21. In Europe today the existence of organized political party opposition is by many taken as granted. This has not always been so. Even within political systems that have historically been regarded as (more or less) democratic, this did not necessarily include institutionalised opposition. In 1966 Robert Dahl remarked that:

5 6 7 8 9 10

Draft joint osce/odhir – Venice Commission guidelines on political party legislation, cdl (2010)073. See, i.e. Opinion on the constitutional and legal provisions relevant to the prohibition on political parties in Turkey, CDL-AD(2009)006. Report on legislative initiative, CDL-AD(2008)035. Report on imperative mandate, CDL-AD(2009)027. Report on constitutional amendment, CDL-AD(2010)001. Report on the regime of parliamentary immunity, CDL-INF(1996)007e.

99 Report on the Role of the Opposition

545

– Of the three great milestones in the development of democratic institutions – the right to participate in governmental decisions by casting a vote, the right to be represented, and the right of an organized opposition to appeal for votes against the government in elections and in parliament – the last is, in a highly developed form, so wholly modern that there are people now living who were born before it had appeared in most of Western Europe. Throughout recorded history, it seems, stable institutions providing legal, orderly, peaceful modes of political opposition have been rare. […] Legal party opposition, in fact, is a recent unplanned invention that has been confined for the most part to a handful of countries in Western Europe and the English-speaking world. […] The fact that a system of peaceful and legal opposition by political parties is a comparative rarity means that it must be exceedingly difficult to introduce such a system, or to maintain it, or both.11 22. Since this was written, democracy has spread, not least in Europe, where organized political opposition inside and outside of parliament can be said today to function at least reasonably well in almost all the 48 member states of the Council of Europe. For many European countries this is however a very recent phenomenon, which cannot be taken for granted. Even for the old and mature democracies of Western Europe, maintaining and perfecting a well-functioning system of political opposition is a challenging and continuous task.12 23. In Resolution 1601 (2008) the Parliamentary Assembly stated that the existence of “a political opposition inside and outside of parliament is an essential component of a well- functioning democracy.” The Venice Commission agrees with this, and is of the opinion that the legal and factual conditions for peaceful parliamentary opposition constitute a benchmark for assessing the democratic maturity of any given political system.

11

12

Cf. Robert Dahl (ed.) “Political Oppositions in Western Democracies” (1966), preface page xiii–xiv. At the time, Dahl noted that of the 113 members of the United Nations, only about 30 had political systems in which full legal opposition among organized political parties had existed throughout the preceding decade. This prompted the question “Are the 30 systems that now exist merely the exotic flowers of a unique and passing historical climate? Or are they vigorous products of a long evolution, a political species now rugged enough to thrive in other, perhaps harsher, climes?” The same of course applies to democracies in all other parts of the world. An interesting example of this common discussion is the report on “The Role of the Opposition”, from a  workshop in June 1998 between representatives of 20 Commonwealth countries, ­organised and published by the Commonwealth Secretariat and the Commonwealth Parliamentary Association.

546

chapter d

24. A parliament is by its nature not a monolithic and homogeneous institution, but a representative assembly, where the basic idea is that different interests and ideas should be represented, and where there will always be differences of opinion, and always a distinction between the majority and one or more opposing minorities. In modern parliaments this is organised along political party lines, with the basic distinction running between the governing party (or parties) and the opposition parties that are represented in parliament. 25. The principle of majority rule, reflecting the majority popular will, is a basic formal and legal criterion of a “democracy.” Within parliament decisions are taken by the majority, and a parliamentary system of government is characterized by the fact that the government will usually (though not always) have the support of the majority.13 The opposition is usually in minority, and the minority as a general rule does not have the competence to adopt decisions. The function of the opposition is not to rule. Instead the opposition may have other functions. How these may best be listed is arguable, but among them may be the following: – To offer political alternatives – To articulate and promote the interests of their voters (constituents) – To offer alternatives to the decisions proposed by the government and the majority representatives – To improve parliamentary decision-making procedures by ensuring debate, reflection and contradiction – To scrutinise the legislative and budgetary proposals of the government – To supervise and oversee the government and the administration – To enhance stability, legitimacy, accountability and transparency in the political processes 26. The extent to which the opposition in a given parliamentary system is allowed to actually fulfil these functions can be seen as a sign of the level of democratic maturity. If none of them are fulfilled, then this will be a sign of a dysfunctional democracy. 13

A distinction here is between positive and negative parliamentarism. Positive parliamentarism means that the government must have the explicit support of the majority in parliament, usually through a vote of support or confidence (investiture). Negative parliamentarism means that the government can sit as long as it does not have the explicit distrust of the majority, as expressed in a vote of non-confidence. Systems with negative parliamentarism are more likely to have periods of minority government. But minority government can also occur in systems with positive parliamentarism, if one or more of the opposition parties vote for the government.

99 Report on the Role of the Opposition

547

27. The functions listed are supplementary and to some extent interrelated. Which ones are the most important differ between parliamentary systems, and may also differ over time within a given system, and between opposition parties. Some opposition parties may choose to present alternative proposals to those of the government, while others choose to support it. Some conduct strict scrutiny of government actions, while others do not. Whether or not an opposition party may realistically aspire to government power after the next election will impact the way in which it perceives and fulfils its opposition role. Whether it is large or small is another important factor. Opposition parties at the outer ends of the political spectrum will often behave quite differently from those in the centre. While a large and wellestablished opposition party may typically concentrate on formulating an alternative policy for governing the country after the next election, many small opposition parties without government aspirations often define their parliamentary role quite differently, as watchdogs, emphasizing supervision and scrutiny. 28. The term “opposition” may cover both opposition as a function and the opposition as a subject. Opposition as function covers all arguments and activities that oppose the policies of the majority and the government. The “opposition” as one or more subjects is usually defined as those political parties not holding government power. The two concepts are normally overlapping, but not necessarily. An opposition party may choose to support the governing faction, on a permanent or case-to-case basis. On the other hand, it is in some parliaments not altogether uncommon that backbencher members of the governing party sometimes join the opposition parties in voting against the proposals of their government. 29. The nature and strength of the parliamentary opposition in any given country depends on the electoral system. In systems with proportional representation, which is the dominant model in Europe, the opposition will usually have far better parliamentary representation than in systems based on first past the post, as in the uk Westminster model.14 Proportional representation will also tend to foster more political parties of some size and significance.15 14 15

This is, however, not always the case, and there are some models of proportional representation that may restrict the number of parties represented in parliament. At the same time, a system based on first past the post may tend to produce a more homogeneous and less fragmented opposition, with only one or two main opposition parties represented in parliament, thus making it easier to create a “shadow cabinet” and to appoint a formal “Leader of the Opposition,” with certain parliamentary privileges,

548

chapter d

The electoral threshold is another important element deciding the number and size of opposition parties. This varies in Europe, with the main model around 5%, which usually ensures that a certain number of opposition parties are represented in parliament.16 30. The Venice Commission is of the opinion that ensuring the political opposition reasonable representation in parliament is in itself of great importance for fostering stable and legitimate democracy, as pointed out by the rapporteurs to the Council of Europe Forum for the Future of Democracy in 2007: 11. The lack of a strong opposition in parliament may lead to a form of extraparliamentary opposition in which protests may be expressed in violent forms on the streets, thus diminishing the quality and relevance of the parliamentary debate and affecting the decision-making process as a whole. One means of avoiding situations in which opposition is essentially extra-parliamentary is to lower the thresholds for parliamentary representation. In a developed democracy, thresholds should be low, in order for the rights of all citizens and all political views and interests to be represented in parliament.17 31. Based on the national political context and the electoral rules, a parliament may have anything from one to a large number of opposition parties.18 These may belong to “blocks,” or they may be split, often with opposition parties at both ends of the political spectrum in relation to the governing faction. The traditional (uk) Westminster model, with only two major parties, is today very rare in Europe. The old and simple distinction between the governing majority

16

17

18

who may serve an important function and make more distinct the existing political differences and alternatives. Among the member states of the Council of Europe Turkey has the highest threshold, at 10%, followed by Liechtenstein at 8%, and the Russian Federation and Georgia at 7%. A third of the states impose a 5% threshold and 13 of them have chosen a lower figure. The other member states do not use thresholds. Moreover, in several systems the thresholds are applied only to a restricted number of seats. In case Yumak and Sadak v. Turkey of 8 July 2008 the ECtHR accepted the Turkish 10% clause as not violating echr First Protocol Article 3. In its Report on electoral law and electoral administration in Europe, of 12 June 2006, the Venice Commission accepted that “One electoral system might concentrate more on a fair representation of the parties in parliament, while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of one party in Parliament.” Cf. Conclusions by the General Rapporteurs (mm. Gross, Whitmore and Tarschys) to the Forum for the Future of Democracy meeting in Stockholm/Sigtuna in June 2007, paragraph 11. In some parliaments there are also traditions for independent mps, without party affiliation, who will then fulfil a particular form of opposition, “between the factions.” Whether or not this is possible depends inter alia on the electoral system.

99 Report on the Role of the Opposition

549

party and the Opposition as a single entity with a capital “O” (and a permanent “shadow cabinet”) is thus far from the political reality in most European countries. At the same time, even in parliaments with many opposition parties represented, one or more of them may form a block that is the only realistic alternative to win government power after the next elections, and which therefore functions as the dominant “Opposition.” 32. In a parliamentary system, the government will often have the explicit support of a parliamentary majority, normally consisting of its own party, or parties if there is a government coalition. The opposition, in consequence, will be in minority. But this is not always the case. Many European countries have extensive experiences with “minority governments” – that is, governments by political parties that do not by themselves have a parliamentary majority. Such governments may have an agreement with one of the opposition parties, providing a stable majority, but they may also be without regular support, depending on support from one or the other of the opposition parties on a case-to-case basis. Periods of minority government will per definition be characterised by the fact that the majority in opposition is not able to agree on an alternative government. But this does not mean that the opposition parties cannot agree on other issues, for example on supervising and criticizing the government or even on adopting majority decisions contrary to the preferred policies of the government. Examples are Denmark in the 1980s and Norway in the 1990s, which both experienced long periods during which the parliamentary opposition was able in effect not only to supervise but even to instruct minority governments on a number of issues. 33. The “opposition” is primarily a concept used in parliamentary systems. The context is different in political systems where the head of the executive – usually the president – is directly elected, and not dependent upon parliament. In presidential systems, such as the usa, or semi-presidential, such as France, there may be periods in which the same party has both the president and the majority in parliament, but there will also be periods in which it does not – in France often referred to as “cohabitation.” During such periods the concept of a political “opposition” is different from that in parliamentary systems, and the picture is rather that of two opposing organs of state, representing a particular form of separation of powers – or “institutional opposition” as it is sometimes called. 34. Another form of political division is found in bicameral parliaments in which the two chambers are elected or chosen on different criteria, and in which different parties may hold the majority in each chamber – with the opposition in one having the majority in the other. This also reflects a form of separation of power, with “checks and balances,” rather than the dichotomy of

550

chapter d

position/opposition. Even so, there may also in such systems still be other smaller parties, which are not part of the majority in either chamber, and in “opposition” in the traditional sense. 35. In some political systems the government is composed of all the major parties represented in parliament, which makes it difficult to operate with a concept of “opposition” in the ordinary sense. This applies to Switzerland. It also applies in some countries with special needs for national reconciliation, such as Northern Ireland. 36. The distinction between the ruling faction and the opposition, and the role of parliamentary minority groups, may also differ in regional parliaments, as well as in institutions such as the European Parliament (of the eu) or international parliamentary assemblies such as the pace. 37. The following comments will primarily be related to national parliamentary systems, and to the main situation, in which the opposition parties are in minority, and therefore in need of some level of protection in order to fulfil the basic legitimate opposition functions that are necessary in order to ensure effective and sustainable democracy. 4 Legal Protection of the Parliamentary Opposition and Minorities 4.1 Introduction 38. When assessing the strength and position of the parliamentary opposition in any given country, the legal situation is only one of several factors. More important is the overall national political context and culture, which is formed by a number of factors in addition to the legal constitutional framework. In mature and stable democracies, with traditions of political tolerance, the opposition can thrive without legal guarantees, while in other political systems the opposition may be severely restricted even if it enjoys a high degree of formal protection. 39. In a political system where there is from time to time a change of government, enlightened self-interest on the part of the incumbent ruling party will often serve as a basic guarantee for the protection of the opposition. The governing party will know that it may well find itself in opposition after the next elections and if it is rational it will treat the present opposition accordingly. 40. Resources are another factor. Even if the axiom formulated by political scientist Stein Rokkan that “votes count, resources decide” is a bit too absolute, the economic and other resources available to an opposition party may matter more to it than the legal framework within which it operates. Parliamentary resources are part of this. In Europe there are wide differences between the administrative and organizational set-up of national parliaments. Some parliaments have large administrations, providing support and research staff

99 Report on the Role of the Opposition

551

and other facilities to mps and party groups, including the opposition. In other parliaments there is very little administrative support, which makes parliamentary opposition more difficult.19 41. Legal regulation of opposition and minority rights still matters, in different ways. For the daily running of parliamentary politics it can matter a lot to the opposition how the procedures are regulated, and whether or not they give the opposition reasonable participation and influence. On a deeper level, ensuring the opposition legal protection can give it a secure basis for its activities, and may contribute to forming a political culture of tolerance for opposing opinions. This can be of particular importance in countries that are still in the process of developing and cementing their democratic and parliamentary traditions. 42. Legal regulation is a way of institutionalising the role of the political and parliamentary opposition. As pointed out by political scientist Robert Dahl, this is one of several factors that may determine democratic robustness and drive up “the cost of coercion” by the governing party: Finally, once a system that permits peaceful party opposition is highly institutionalized and surrounded with legal protections, the cost of destroying it are likely to be extremely high. For a government can destroy the opposition only by destroying the constitutional system. At this stage of evolution, to destroy the opposition requires a revolution. And the costs of revolution often run high.20 43. In recent decades democracy has spread in Europe, and reached a “stage of evolution” where the political conditions for parliamentary opposition can be said to function very well in a majority, and reasonably well in most of the others, of the member states of the Council of Europe. However, the formal regulation of the role of the opposition has not reached the same stage. As pointed out by the Venice Commission in a 2007 opinion, the degree of formal institutionalization of the parliamentary opposition varies greatly in Europe: 19

20

Parliamentary administrative support systems may in effect often primarily function as an instrument for the opposition, and as a kind of counter-expertise to the administrative resources of the government and the administration, to which the governing party (faction) has access. Here again it is a question of finding a balance, between on the one hand giving the parliamentary opposition the necessary resources to fulfil its legitimate function in a constructive manner, and on the other hand not overloading the system by creating another administrative structure to compete with that of the executive. Cf. Robert Dahl (ed.) “Political Oppositions in Western Democracies” (1966), preface page xvi.

552

chapter d

The legal status of the opposition in a given national Parliament varies greatly from country to country. A specific law on the opposition is exceptional in international comparison. The concrete solutions are determined by the constitutional framework, the electoral system and other historical, political, social and cultural factors. Hence the degree of institutionalisation of the opposition differs from largely unwritten, conventional recognition to formal regulation entrenched in the Constitution.21 44. On this basis, the Venice Commission concludes that European democracy has now reached a stage of development where it is appropriate and interesting to explore the ways and means by which the role and functions of the parliamentary opposition can be formally better regulated and protected. This is the core issue in Resolution 1601(2008) by the Parliamentary Assembly, and it applies equally to the old and the new democracies of Europe. The following is an attempt to contribute further to such a process, by analyzing common basic principles and challenges, as well as legal categories and techniques for regulating parliamentary opposition and minority rights and competences. 4.2 Legal Protection in the Wide and Narrow Sense 45. A basic feature of the European democratic parliamentary tradition is that the role of the opposition is legally better protected than it might seem at first glance. This is not primarily done by regulating opposition rights explicitly, but in a more indirect manner, both at the constitutional and other levels. 46. Most constitutions consist mainly of two sets of norms and rules – (i) on state institutions and machinery of government, and (ii) on fundamental rights of the individual. Both sets of norms can in a wider sense function so as to protect and foster political opposition, inside and outside of parliament. A number of basic human rights, including freedom of expression and opinion, freedom of association, protection against arbitrary arrest and torture, access to court, and others, are indispensable for the development of democratic opposition to the ruling power.22 21 22

Cf. the preliminary opinion on the parliamentary opposition in Ukraine of March 2007, CDL-AD(2007)015, paragraph 4. An important example is Article 11 echr on freedom of association and assembly, which is interpreted so as to protect the existence and activities of political parties, outside and inside of parliament. Many European constitutions have rules on prohibition of political parties, which may also effect the party factions represented in parliament. But if such rules are invoked, then this will be a restriction under Article 11 (1) echr, which must be justified under 11 (2). It has been held by the ECtHR in several cases that due to the importance of political parties for the functioning of democracy, the echr requires a particularly strong justification in such cases. Protection of political parties against illegitimate

99 Report on the Role of the Opposition

553

47. The same applies to the basic constitutional rules on the electoral system and the state institutions. Even if this is not explicitly stated, such rules often in effect protect opposition and minority rights and interests, by laying down procedures that the majority cannot ignore or circumvent, even when that would have been more comfortable. This is particularly clear as regards electoral rules.23 But it also applies to all those procedures that prescribe parliamentary participation and debate – as these will always bring the cases to the attention of the opposition and open up a possibility for critical examination. The basic democratic principle that laws and budgetary decisions have to be adopted by parliament is in effect a way of ensuring opposition participation in the basic political decision-making. When the constitution demands that certain government decisions have to be approved by parliament, or certain government documents presented, the effect is that these are subjected to opposition supervision, scrutiny and potential criticism. 48. The same applies to parliamentary procedures. When the rules of procedure for example state that cases have to be sent to the committees for scrutiny, and then debated in the plenary before adoption, then this is in itself a guarantee for the opposition that it will be included in the political process. 49. That constitutionalism in itself serves to protect the political opposition by laying down procedures that the majority cannot easily change was pointed out by the Venice Commission in its 2009 Report on Constitutional Amendment: Many of the constitutional rules on governance also serve to protect the political opposition, ensuring representation and voice, and thereby guaranteeing the opportunity for the opposition to compete for majority power in future elections.24 50. In short, a constitutional democracy, where the elections and the exercise of state power by government and parliament are regulated through constitutionally protected procedures that the majority cannot set aside at its own discretion, is in itself the best guarantee for the existence of effective political opposition. Given this basis, and a political culture based on democratic tolerance and respect for legitimate disagreement, opposition interests can be well

23

24

dissolution has been considered by the Venice Commission in its 1999 general “Guidelines on prohibition and dissolution of political parties and analogous matters”, and recently in detail in the 2009 “Report on the constitutional and legal provisions relevant to the prohibition of political parties in Turkey”, cf. CDL-AD(2009)006. See below section 5.6. The degree to which electoral rules are regulated at the constitutional level varies considerably in Europe. The Venice Commission should stress the importance of constitutionally protecting the basic principles of the national electoral system, in such a way that a simple majority can not easily change or circumvent them. Cf. “Report on constitutional amendment” of December 2009, CDL-AD(2010)001 para 78.

554

chapter d

protected even if there are no provisions or norms explicitly addressing the issue. 4.3 The Subject of Legal Protection 51. In all European constitutional systems, there are however also provisions that more explicitly confer rights or even competences to parliamentary entities other than that of the majority – and thus directly or indirectly also to the opposition. The subject, or beneficiary, of such rules can be: – The individual member of parliament (mp) – The political party groups represented in parliament (factions) – A qualified minority of mps – The “opposition” as such 52. Of these, the two first categories are usually the most important for the functions of the parliamentary opposition, while the third is more rare, and the last one very rare or non-existent in most European countries. 4.3.1 Legal Rights and Position of the Individual mps 53. In most European countries the individual member (mp) is from a formal point of view one of the main legal entities in parliament. A parliament is an assembly of elected representatives, each from their own constituency, and a number of formal rights and obligations are usually attached to the individual mp. This applies regardless of whether the mp belongs to the government faction or the opposition. But the actual importance of the formal standing will be greater for minority mps, and may determine to what extent they are able to fulfil opposition functions effectively. 54. In most European parliaments there is an explicitly or implicitly recognized basic principle of equal treatment of representatives. An mp is an mp, whether in opposition or not. In Resolution 1601 (2008) of the Parliamentary Assembly it is emphasized in paragraph 5 that “Equal treatment of members of parliament has to be ensured in all their activities and privileges”. 55. A number of basic rights and competences or the individual mp are widespread in Europe, as part of a common parliamentarian tradition. These typically include: – The right to vote (on legislation, budgets and etcetera) – The right to table bills and motions – The right to speak in debates (often modified) – The right to ask oral or written questions of the government – The right to participate in committee work

99 Report on the Role of the Opposition

555

– The right to receive information and documents presented to parliament – Parliamentary immunities, such as parliamentary non-liability (freedom of speech) and parliamentary inviolability (freedom from arrest) – Freedom of political opinion, including protection from “imperative mandate” and the right to change party allegiance – The right to initiate cases before the Constitutional Court 56. Not all mps enjoy all of these rights and competences, and not all of them are absolute. Some are basic, such as the right to vote. Others are more relative, and there are often exemptions, usually for the sake of efficiency. Thus the right to speak in debates is usually strictly regulated and in many countries allocated only to the party groups, not to the individual mps. And though there may in many countries be a right to participate in committee work, there is seldom or ever the right for the mp to choose the committee. Some rights may not necessarily correspond to obligations for others – for example an mp may have the right to ask questions to the minister but this does not mean that the minister is necessarily obliged to answer. 57. In most European parliaments the individual representative has a right of political initiative, including a right of legislative initiative and the right to ask questions. This ensures that the opposition is able to put issues on the parliamentary agenda, even if it does not have the right to have the proposals adopted. In the great majority of European parliaments the individual mps have a general right of legislative initiative, though sometimes restricted for specific kinds of proposals that are reserved for the party groups or a qualified minority.25 58. A common European parliamentary tradition is to give the representatives special protection or “immunity”, which is usually laid down in the national constitution. This typically includes a particular level of freedom of speech (non-liability), but may also to varying degrees cover immunity from civil and/ or criminal prosecution. Such rules may function both as a collective protection for parliament as an institution, and as individual protection for the mps, against the executive, the legislature or the parliamentary majority – as was pointed out by the Venice Commission in its 1996 “Report on the regime of parliamentary immunity”.26 25 26

Cf. “Report on legislative initiative” of December 2008, CDL-AD(2008)035. CDL-INF(96)7. Parliamentary immunity as such is not protected by the echr, but there are several cases in which the Court has had to assess the scope of such rules in relation to other basic rights, in particular the right to a fair trial under Article 6, cf. for example Kart v. Turkey, 3 December 2009 (8917/05). See below section 4.6.

556

chapter d

59. Another basic right for the individual mp that has been assessed by the Venice Commission is the freedom not to be bound by an “imperative mandate,” but to be able freely to form opinions or even change party allegiance. In a 2009 opinion the Commission emphasized the importance of a free and independent mandate for members of parliament, and held that …losing the condition of representative because of crossing the floor or switching party is contrary to the principle of a free and independent mandate. Even though the aim pursued by this kind of measures (i.e. preventing the “sale” of mandates to the top payer) can be sympathetically contemplated, the basic constitutional principle which prohibits imperative mandate or any other form of politically depriving representatives of their mandates must prevail as a cornerstone of European democratic constitutionalism.27 60. In most democratic parliaments the rights attached to the individual mps constitute an important part of the legal basis and protection of the parliamentary opposition. The Venice Commission in general supports the principle of formal recognition and empowerment of the individual mp as a cornerstone of democratic parliamentary procedures. 4.3.2 Legal Rights and Position of the Party Groups (Factions) 61. With the emergence of modern party politics in Europe in the 20th century, the most important entity in parliamentary procedures from a practical point of view has long since become the party groups (factions). In most parliamentary systems this is formally recognized if not in the constitution then at least in the parliamentary rules of procedure, which often regulate a number of issues using the party groups as the basic entity.28 This typically includes 27 Cf. “Report on the imperative mandate and similar practices” CDL-AD(2009)027 paragraph 39. Prohibitions against imperative mandate are to be found in the constitutions of Andorra, Article 53; Armenia, Article 66; Croatia, Article 74; France, Article 27; Germany, Article 38.1; Netherlands Article 67; Italy, Article 67; Lithuania, Article 59 – which refers to no restriction of representatives by other mandates; Romania, Article 69; Spain, Article 67.2. See also CDL-EL(2009)005 paragraphs 11–12. Another interesting example is Article 2 of the Rules of Procedure of the European parliament, which states that meps shall exercise their mandate independently, shall not be bound by any instructions and shall not receive a binding mandate. 28 Sometimes the parliamentary party groups are mentioned in the constitution, as in Article 180 of the Constitution of Portugal, or Article 73 of the Constitution of Cyprus, which states that “Any political party which is represented at least by twelve per centum

99 Report on the Role of the Opposition

557

­ rocedural rights of participation, such as representation in committees and p other parliamentary organs, the right to demand debates, speaking time in debates and etcetera. Such provisions seldom distinguish between the governing party and the opposition, but they are of particular importance for the latter, and function as minority rights and competences. 62. To the extent that parliamentary procedures are regulated along party lines, then the criteria for forming a “party group” become important. In some parliaments there are a minimum number of mps required, and this may be a problem for small opposition parties with only a few seats. If the threshold for forming a party group is high, then this may constitute a democratic problem.29 63. For opposition party groups a particularly important principle is that of proportional representation – in the parliamentary committees, the allocation of positions, speaking time, distribution of administrative and financial resources, and etcetera. This is a principle that can be found in most parliaments, although of varying strictness. Some parliaments apply proportionality to all the important allocations, while others only reserve it to some. 64. There is also great variety as to how the principle of proportional representation is formally recognised. In a few countries it is explicitly regulated in the constitution. This includes Article 52 of the Constitution of Denmark, which states that “The election by the Folketing of members to sit on committees and of members to perform special duties shall be according to proportional representation”, and Article 95 of the Constitution of Turkey that “The provisions of  the Rules of Procedure shall be drawn up in such a way as to ensure the participation of each political party group in all the activities of the Assembly

29

of the total number of the Representatives in the House of Representatives can form and shall be entitled to be recognised as a political party group”. But more often the national constitutions do not regulate the position of the party groups, which is then left to the parliamentary Rules of Procedure. In the Rules of Procedure of the European Parliament (of the eu) the position of the “party groups” is strong, and there is the requirement that a “political group” must have members from more than one Member State, and that the groups must be comprised according to “political affinities”. This was challenged in 1999 by a number of independent mps who wanted to form a “technical” party group in order to operate more effectively, even if they did not share any political affiliation. This was rejected by the plenary, and the Court of First Instance upheld the refusal, cf. Martinez and De Gaulle v. European Parliament, case T-222/99, T-327/99 and T-329/99, judgment of 2 October 2001, European Court Reports 2001 p. II–02823.

558

chapter d

in proportion to its number of members…”.30 In other parliamentary systems the principle may only be regulated on a lower level, usually in the rules of procedure, or not at all – but still acknowledged as a “convention,” which the majority will usually respect.31 65. The new pace guidelines on the rights of the opposition laid down in Resolution 1601 (2008) have several points on proportional representation, including: – speaking time in plenary sittings shall be allotted at least according to the respective weight of political groups […] (2.2.9) – the presidency of standing/permanent committees shall be allocated among parliamentary groups on the basis of proportional representation […] (2.5.1) – any committee, permanent or not, shall be composed on the basis of proportional representation (2.5.2) 66. The Venice Commission concludes that party groups constitute an important basic entity in democratic parliamentary procedures, and endorses the principle of proportional representation as an important instrument for ensuring opposition and minority rights. 4.3.3 Legal Rights and Position of Qualified Minorities 67. The main principle in parliaments is that decisions are taken by simple majority voting. There are however two exemptions. The first are rules requiring a qualified majority in order to adopt a decision. The second are rules giving a qualified minority decision-making competence. The two categories are related, but there are differences. A qualified majority rule means giving the minority the negative power to block decisions, and this is most often used for decisions of particular importance, such as constitutional amendment, delegation of sovereignty etcetera. A qualified minority rule in contrast gives 30

31

See also Article 55 of the Constitution of Austria, that “The National Council elects its Main Committee from its members in accordance with the principle of proportional representation”. In Norway the principle of proportional representation is only laid down in the ordinary rules of procedure of the parliament, which can formally be changed by the majority at any time. In practice, however, there is a well established convention protecting the principle, and the political threshold for denying a party group proportional representation is very high. This does not mean that it cannot happen. One example occurred in 1948, when parliamentary procedures for consulting with the government on issues on foreign affairs and security were circumvented in order to keep out the substantial pro-Soviet Communist Party Group, in order that they should not have access to sensitive information given to the other opposition parties.

99 Report on the Role of the Opposition

559

the minority a positive competence to itself initiate and adopt a decision. This is most often used for procedural issues, or issues related to parliamentary oversight and scrutiny.32 68. Parliamentary rules on qualified majority or minority in effect means giving rights and competences to the opposition, but only to opposition groups of a certain size. Sometimes a large opposition party will by itself have enough mps to exercise the competence, but it may also be that no single party group has enough, so that it requires cooperation between opposition groups. 69. Parliamentary qualified minority rules are to be found either as a particular number of mps, for example 10 or 20 – or as a percentage of the overall number of mps, for example 1/5, 1/4 or 1/3, in the plenary or in a committee. The exact threshold will often be the result of careful assessment, aiming to achieve a balance between majority rule and perceived legitimate minority interests, and tailored to the national political culture and context. 70. Rules giving qualified parliamentary minorities procedural rights and competences are relatively widespread in Europe, though there is no clear pattern or common model. Most of the examples are related matters such as the right to request that sessions and debates are held, to raise interpellations, to table certain kinds of motions, and etcetera. Such provisions are usually to be found in the national parliamentary rules of procedure, though there are examples that they are also laid down in the constitution or in statutory law.33 71. Rules requiring a qualified majority to end debates (cloture) are in effect another example of a qualified minority right, enabling a minority of a certain size the possibility to delay or even block parliamentary procedures by dragging out the debates (“filibustering”).34 72. In some parliaments a qualified minority may have the right to delay majority decisions, for example by calling for extra hearings, or periods of reflection. 32

33

34

Rules on qualified minority are sometimes referred to as “submajority rules”. For an analysis of the rationale behind such rules, cf. Adrian Vermeule “Submajority Rules: Forcing Accountability upon Majorities”, Chicago Law School Working paper 2004. Rules on qualified minority are sometimes referred to as “submajority rules”. For an analysis of the rationale behind such rules, cf. Adrian Vermeule “Submajority Rules: Forcing Accountability upon Majorities”, Chicago Law School Working paper 2004. A well known example is the rule in the United States Senate that a senator or a series of senators are permitted to speak for as long as they wish and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn” (60 out of 100) brings debate to a close by invoking cloture under Senate Rule XXII. This in effect gives a minority of 2/5 of the Senate the competence to block majority decisions, a power that has been used (or threatened) on a number of occasions.

560

chapter d

According to Article 41 of the Danish constitution a minority of 2/5 of the mps can demand that the third and last hearing on legislative proposals is delayed by up to 12 days, in order to give the minority the possibility to initiate public debate. 73. Qualified minority rights may be found in the general parliamentary procedures, or in special procedures for particular issues, most commonly in procedures for parliamentary oversight and scrutiny of the executive. Here there are examples to be found that a certain minority percentage of the mps have the competence to actually adopt decisions – for example to call a hearing or establish a committee of inquiry. In the German constitution, for example, Article 44 gives 1/4 of the mps the right to demand the establishment of a parliamentary commission of inquiry. In the Norwegian parliament, 1/3 of the members in the Oversight Committee can initiate inquiries and call public hearings. In Resolution 1601 (2008) the pace advocates introducing qualified minority rights for 1/4 of the mps in a number of rules on supervision, scrutiny and control. More on this below in section 5.3. 74. Another widespread competence is the right of a qualified minority of mps to request constitutional review of legislative and other majority acts from the national constitutional court or other such institutions. More on this below in section 5.5. 75. The most widespread rules on qualified majority to be found in European parliaments are rules on constitutional amendment, which in most countries require a procedure involving a decision by qualified majority in parliament. The most common threshold is a 2/3 s majority requirement, but 3/5, 3/4 and 5/6 is also used.35 Such provisions in effect give a minority (opposition) of a certain size a parliamentary veto. More on this below in section 5.4. 76. The Venice Commission is of the opinion that parliamentary rules on qualified majority or minority constitute an instrument that may effectively and legitimately protect opposition and minority interests, both when it comes to procedural participation, powers of supervision and certain particularly important decisions. At the same time, this is an instrument that restricts the power of the democratically elected majority, and which should therefore be used with care, and tailored specifically to the national constitutional and political context.

35

This was assessed by the Venice Commission in its “Report on constitutional amendment” of December 2009, CDL-AD(2010)001. See below section 5.4.

99 Report on the Role of the Opposition

561

4.3.4 Legal Rights and Position of the Opposition as Such 77. Giving rights to individual mps, the party groups and qualified minorities is by far the most common way of conferring formal rights on the parliamentary opposition in European countries. Provisions giving legal rights to the “opposition” as such are more rare – though there are examples to be found. 78. Attaching formal rights to the opposition as such is first and foremost a concept applicable in Westminster Style parliaments, based on first-past-thepost electoral rules, which promotes a system with only two major parliamentary factions – the governing party and the “opposition”. In the British tradition this is sometimes emphasized by referring to the main parliamentary opposition faction with a capital “O,” and even as “The loyal Opposition”, or “Her Majesty’s Opposition”. In the uk Parliament there are a number of conventions and provisions on procedure based on the concept of the “opposition”., for example, the right of the leader of the opposition to a weekly period of questioning of the Prime Minister and a convention that the opposition members chair certain committees of the House. 79. There are also some other European parliaments that operate with a institutionalized concept of the “opposition” as such, to a larger or smaller degree. One example is Malta, where the Constitution states in Article 90 that “there shall be a Leader of the Opposition who shall be appointed by the President”. Another example is Portugal, where there is a special law on the opposition.36 80. But apart from these examples, references to the “opposition” as a legal concept are rare in European parliamentary systems. The main reason for this is that the “opposition” in most parliaments is not a single entity, but consists of several party groups, sometimes quite a few, and usually with contradictory interests, opinions and strategies. The degree to which the opposition parties actually oppose the government may also differ, with some supporting it explicitly or tacitly, either in general or on a case-to-case basis, and others in strong and permanent opposition. Providing the opposition party groups with legal rights as a single block is therefore not possible or at least not constructive. And giving one or more of them (for example the largest one) a special privileged status as the “Opposition” is contrary to the principle of equality of mps and may be bitterly resented by the others. 36

Law no. 24/98 of 26 May 1998. Here the concept of “opposition” is defined in article 2 as a function: “Opposition shall be understood to be the activity of monitoring, supervising and criticising the political guidelines followed by the Government…”. The rights listed in the statute include the right to prior consultation (article 5), rights of participation in general (article 6) and in legislation in particular (article 7), the right to make depositions (article 8) and guarantees of freedom and independence of media (article 9).

562

chapter d

81. In its “Opinion on the Draft Law on the Parliamentary Opposition in Ukraine”37 of June 2007 the Venice Commission advised against adopting a special law on the “opposition” as such – arguing that this did not correspond to the constitutional and political context in the Ukrainian parliament: 5. Neither the term “Parliamentary Opposition” nor the concept of “Oppositional Activity” is currently used in the Ukrainian Constitution and legislation. Hence the scope of rights and immunities of mps, which is defined by the Constitution, the Law on the Status of People’s Deputies of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine, does not depend on their affiliation with any parliamentary faction. 6. By its specific nature as a general law and its bipolar character resulting from its definitions listed in Article 1, the Draft Law builds on a very strong division between ruling coalition and opposition. Approving a special status for the opposition and entrenching it in a special law can make sense when this is meant to reinforce the political and institutional position of the strongest opposition party, which may become tomorrow’s majority. This may be the case in systems based on majority rule, where the opposition consists of the most important minority party in Parliament, which is ready to succeed the Government when it has resigned (Westminster model). The two main political parties usually alternate as Government and Opposition in a majority system, which is often bipolar. 7. The Ukrainian Parliament has so far been rather characterized by a plurality of political parties, blocs, factions and independent mps. Political and institutional life change regularly, as do numerical majorities in the Verkhovna Rada as a result of mps switching parties. Under such circumstances, the Venice Commission considers that it can be very difficult – and in some cases problematic from the non- discrimination viewpoint – to introduce rigid rules, especially when they tend to give specific powers to some political actors to the detriment of other, equally legitimate to speak as representatives of the citizens. 8. As the Commission already pointed out in its preliminary opinion, the rigidity of the procedure chosen to establish and terminate the “Parliamentary Opposition” raises concerns since it can have adverse impacts on the freedom and independence of the mandate of the deputies which would result from such a cementing of parliamentary adhesion and loyalties of a majority group. 37

Cf. CDL-AD(2007)019, adopted in June 2007, and also the earlier preliminary opinion of March 2007, CDL- AD(2007)015. After the opinion of the Venice Commission the proposed law was withdrawn.

99 Report on the Role of the Opposition

563

82. In France the Constitutional Council declared on 22 June 2006 that arrangements introduced by the new Rule 19 of the Rules of Procedure of the National Assembly, which required parliamentary groups to make a statement of allegiance to the Majority or Opposition and, if they objected, to confer decisionmaking power on the Bureau of the National Assembly, were incompatible with Article 4.1 of the Constitution. The Council considered that Rule 19 led to an unwarranted difference in treatment, to the detriment of parliamentary groups that object to declaring such an allegiance, by attaching to such a statement of allegiance certain consequences in respect of the right to participate in a number of parliamentary oversight activities. The proposition was contrary to the Constitution, as it would amount to an “unjustified difference” in the treatment of the various political groups.38 83. In Norway the Parliament in 2009 considered and to some extent adopted a number of proposals to strengthen parliamentary minority rights, but it did not make use of the concept of “opposition”.39 84. Even if formal institutionalization of the “Opposition” as a single entity is not advisable in other parliaments than those belonging to the Westminster tradition, this does not mean that the term “opposition” cannot be used constructively when discussing parliamentary procedures. In the Guidelines laid down in Resolution 1601(2008) the Parliamentary Assembly consistently refers to the rights that “opposition members” should have. The underlying premise in most of the text is that these are rights that all members will normally have, but that it is particularly important to emphasize this with regard to members of the opposition. It is also useful to talk about certain parliamentary functions that the “opposition” should be particularly concerned about, such as supervision and scrutiny, which the government mps will not have the same incentive to conduct. 85. In France the new Article 51–1 of the Constitution (added in 2008) states that the Rules of Procedure of the two houses of parliament “shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights”. There is also a rule in Article 48 (5) giving “the opposition groups” the right to set the agenda for one day of sitting each month. But apart from that, the rights and competences are related to the party groups and to qualified minorities, not to the “opposition” as a legal entity. 86. In some parliaments there is a rule or convention that certain positions should be reserved for opposition members, such as the uk and Norway.40 This 38 39 40

See summary and full text of the decision in CODICES, FRA-2006-2-005. Cf. Committee Report No. 235 (2008–2009) of the Norwegian Parliament (Storting). In Malta, for example, the post of Deputy Speaker is traditionally reserved for a member of the opposition.

564

chapter d

in particularly applies to the chairmanship of committees responsible for supervision and scrutiny of government activities, based on the idea that parliamentary oversight of the executive is first and foremost a function that the opposition parties can be relied on to exercise.41 In some political systems, however, there is a tradition that even mps belonging to the ruling party may in effect supervise the government quite strictly. 4.4 The Legal Level and Form of Protection 87. The extent to which formal rules protect parliamentary opposition and minority interests depends not only on their content, but also on which level of the legal hierarchy they are laid down. In general, if a minority interest is only regulated at a level that can be changed by a simple majority vote, then it is formally not very well protected. The actual level of protection may be better, as there will often be unwritten norms and conventions stopping the majority from altering the rules of the game. But in situations where it really needs minority protection, the opposition can not necessarily rely on such selfrestraint by the majority. 88. As a general principle, the basic rules on parliamentary opposition and minority rights should therefore preferably be regulated in a form that the majority cannot alter or amend at its own discretion, at least not without some delay. 89. From a comparative perspective, national rules on legal rights of parliamentary opposition and minority interests are to be found in many forms and at all levels of the legal hierarchy: – The constitution – Statutory law 41

In Resolution 1601(2008) paragraph 2.5.1 the Assembly recommends that the opposition should chair all “committees responsible for monitoring government action, such as the committee on budget and finance, the committee on audit, or the committee supervising security and intelligence services”. This is an example of the resolution going quite far, as compared to what is usual in national parliaments. It also illustrates the difficulties of comparative constitutional law. In many countries, the parliamentary committees responsible for budget and finance would not be considered (merely) as “monitoring” committees. In the Norwegian Parliament, for example, the standing Committee on Finance (Finanskomiteen) is not regarded as a monitoring committee, but as a committee for substantive decision-making. Consequently, the committee is by tradition often chaired by an mp from the government faction, in contrast to the standing Oversight Committee (Kontrollkomiteen), which is usually chaired by the opposition according to unwritten convention.

99 Report on the Role of the Opposition

565

– The parliamentary rules of procedure – Unwritten customary law or convention 90. As pointed out, a number of provisions normally found in national constitutions can be said indirectly to protect the role of the political opposition in general and the parliamentary opposition in particular. This applies both to fundamental rights and to rules on the state machinery and procedures, which the majority has to respect, even when it would prefer not to. Almost all constitutions also have rules on constitutional amendment that require a qualified parliamentary majority and thus provide a minority (the opposition) with the right of veto. 91. Provisions that more explicitly regulate parliamentary opposition or minority rights are not that common in national constitutions, though there are usually some. This primarily depends on the level of detail of the national constitution, which differs a lot, and in particular on the extent to which parliamentary procedures are regulated in the constitution. Most constitutions only regulate the most basic elements of parliamentary life, leaving the details to a special Law on Parliament, or (more often) to Rules of Procedure adopted by parliament itself. This means that most of the issues related to opposition rights in parliamentary proceedings are normally not protected at the constitutional level. 92. One issue that is regulated at the constitutional level in most European countries is that of parliamentary immunity for the mps, which is discussed below in section 5.6. As for other rules on opposition and minority rights, there appears to be wide variance between national constitutions. There are for example some constitutions that state the right of mps to ask questions,42 but in most countries this is regulated in the Rules of Procedure. Only a few constitutions explicitly refer to the concept of the “opposition” as such.43 42 43

For example in the constitutions of Armenia (Article 80), Austria (Article 52.3), Cyprus (Article 73), Finland (Article 37), and Ukraine (Article 134). Those who do include the constitution of Portugal which in Article 114 states that “The right of democratic opposition of minorities shall be recognized on the conditions set out in this Constitution and under the law”, and the constitution of France, which in 51.1 state that “The Rules of Procedure of each House shall determine the rights of the parliamentary groups set up within it. They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights”. The recent 2008 reform of the French Constitution, which aimed inter alia to reinforce the powers of the Parliament, also introduced in its Art 48.3 that a session day per month shall be reserved for an order of business determined by each Chamber at the initiative of the opposition or minority groups of each Chamber.

566

chapter d

The principle of proportional representation in parliamentary procedures is protected in a few constitutions, such as the Danish constitution Article 52, but in most countries this is only regulated in the Rules of Procedure, if at all. 93. As for ordinary statutory law it appears that this is rarely used for regulating the position of parliamentary opposition and minorities. There are however some countries that have a special Law on Parliament, such as in “the Former Yugoslav Republic of Macedonia”, which may to some extent cover opposition and minority rights. In Portugal there is a special law on the opposition as such.44 94. Most provisions regulating parliamentary opposition and minority rights are to be found in the Rules of Procedure of the national parliaments. This is natural, and reflects the procedural autonomy of parliament, which is a basic principle in most constitutional systems. The drawback from a minority perspective is that Rules of Procedure are usually adopted by simple majority, and can thus be altered by simple majority, providing rather weak formal protection for minority interests. 95. This is however not always the case. In some countries the constitution states that the parliamentary Rules of Procedure must be adopted by qualified majority. This applies for example in Austria, where according to Article 30 of the Constitution “the Federal Law on the National Council’s Standing Orders can only be passed in the presence of a half the members and by a two third majority of the votes cast.” According to Article 8:6 of the Swedish Constitution the Rules of Procedure of the Parliament (Riksdagsordningen) can only be changed either according to the procedures for constitutional amendment or by a 3/4 majority.45 96. The Venice Commission is of the opinion that parliamentary Rules of Procedure should preferably be regulated so as to make it difficult for a simple majority to set aside the legitimate interests of the political minority groups. 97. In most parliaments the written Rules on Procedure are supplemented by unwritten norms and conventions. In some parliaments this forms a large part of the procedural norms, such as the “custom and practice” of the uk 44 45

Law no. 24/98 of 26 May 1998. Another variant is the one found in Denmark and Norway, where the rules of procedure are adopted by parliament by simple majority, but with provisions stating that they can not be derogated from in individual cases except by a qualified majority vote (3/4 of the mps in Denmark, 2/3 in Norway). In other words, a majority in parliament is at any time free to alter the rules of procedure in a general manner, but not to derogate from them in specific cases. This kind of self-binding is not strictly logical, but it functions quite well in practice, and provides a high degree of actual protection for opposition and minority interests.

99 Report on the Role of the Opposition

567

parliament, many of which are written down in the form of “Standing Orders.”46 But even in parliaments that have adopted extensive rules of procedure, these will often be supplemented or even altered by unwritten custom. This can be of great importance for the actual position of parliamentary minorities. A common feature of democratically mature parliaments is that the interests of the opposition and minority groups are often far better respected by way of custom and convention than what the formal rules indicate, as pointed out by March and Olsen: “Even beyond specific rules, democracy presumes an ethic of voluntary selfrestraint on the part of legitimate authority, a residual rule of democratic humility. […] Majorities voluntarily yield to minorities in some circumstances. Not all possible advantages within the rules are supposed to be taken, or are actually taken.”47 98. The fact that parliamentary opposition and minority interests are formally protected through provisions in the Rules of Procedure does not automatically mean that the opposition will have the possibility of recourse to judicial review in cases of dispute. In many countries there will not be any procedural possibility for judicial review of disputes over the interpretation and application of the parliamentary rules of procedure, and this would as a matter of principle be regarded as contrary to the procedural independence and autonomy of the parliament. 99. In other constitutional systems there is legal remedy. In the German constitution there is a special complaint procedure before the Federal Constitutional Court called “Organstreitverfahren” as provided for in Article 93.1 of the constitution. In the Turkish constitution Article 148 allows for judicial review of constitutionality over the rules of parliamentary procedure (Standing orders). In France the Constitutional Council has several times ruled on the rules of procedures of both houses of parliament.48 Likewise, the Constitutional Court of Hungary in 2006 examined the constitutionality of provisions relating to the duration of sittings and the time frames for parliamentary speeches. Two judges did not agree with the majority opinion, which pointed to the lack of minority protection in the provisions of the Standing Orders relating to the right to speak.49

46 A number of these can be found at http://www.parliament.uk/about/how/role/ customs. 47 Cf. March and Olsen, Democratic Governance (1995) p. 127. 48 See CODICES 2006-2-005, CODICES 1990-S-001, CODICES 1995-3-010. 49 For a summary and full text of the decision, see CODIDES, HUN-2006-1-001.

568

chapter d

100. There is no common European model when it comes to regulating parliamentary opposition and minority rights, and the Venice Commission does not consider it necessary or appropriate to try to formulate one. The Commission would however emphasize that on closer analysis most national constitutions implicitly and indirectly protects the opposition far better than what they appear to do. The Commission furthermore considers that the most important thing is not the form in which this is done, but that the basic legal requirements for effective parliamentary opposition are protected in such a way that it can not be overruled or set aside by a simple majority at it own whim. 5 Rules Regulating the Parliamentary Opposition or Minorities 5.1 Introduction 101. So far this study has mainly looked at the legal-technical aspects of regulating the role of the parliamentary opposition – directly or indirectly, using different kinds of legal subjects and different levels of the legal hierarchy. Another question is the more material one – what are the substantive opposition and minority rights and competences that are or should be legally guaranteed? 102. The main principle in any parliamentary democracy is that decisions are taken by majority vote. However, the minority should always be allowed to participate. Most rules on parliamentary opposition and minorities are therefore of a procedural nature. Sometimes, however, minorities are given more than just rights of participation, and may even have the competence to adopt or at least influence substantive decisions. 103. In political theory a distinction is sometimes drawn between positive and negative power. Positive power to adopt decisions should in a democracy rest with the elected majority. But the minority (opposition) may enjoy some degree of negative power – to scrutinize, supervise, delay or even block the exercise of majority rule. The concept of “negative power” is a useful instrument for understanding how opposition and minority interests may or should be regulated. 104. The proper balance between democratic majority rule and legitimate opposition and minority rights and interests – and between positive and negative power – is not an easy one, and depends to a large extent on the national political and constitutional culture. There is no single general formula, much less any clear common European standard. But there are still common elements of interest. On closer analysis there appears to be some main substantive categories where special opposition or minority rights are to be found in some or most European parliamentary systems:

99 Report on the Role of the Opposition

569

– Rules guaranteeing minority participation in parliamentary procedures (5.2) – Rules giving a minority special rights to supervise and scrutinize government policy (5.3) – Rules giving a minority the right to block or delay majority decisions (5.4) – Rules giving a minority the right to demand constitutional review of laws (5.5) 105. These are rules giving the parliamentary opposition and minorities rights and competences. In addition come rules protecting opposition parties and mps against persecution and abuse (5.6). 5.2 Participation in Parliamentary Procedures 106. The basic idea of a parliament is that of a representative assembly which should reflect different opinions and which should discuss – the very word “parlement” in French means discussion. Even if the basic principle is that the majority decides, it is not the majority that constitutes the parliament. The parliament as an institution consists of all the representatives, and they are all entitled and obliged to participate in the procedures, whether in majority or minority. It is therefore not surprising that most of the provisions that are to be found relating to individual mps, party groups, qualified minorities and (more rarely) the “opposition” are concerned with procedural issues, ensuring the minority rights of participation, but not decision. 107. A succinct way of putting this is that “The principle underlying parliamentary procedure is that the minority should have its say and the majority should have its way”.50 The minority should have its say, in the sense that it should have the right to participate in the procedures, the committee work, and the debates. And then at the end of the day there is a vote, which the minority looses. The debate may still have improved the outcome, and even if it has not, still the participation of the opposition will have added openness and transparency to the political processes, increasing transparency, accountability and legitimacy. 108. It is also important that the minority should have a say in setting the agenda – deciding which cases should be debated, the dates of the debate, the timeframe, and etcetera. It is not conductive to effective and legitimate parliamentary democracy if the majority is able to decide the agenda alone, allowing only those debates with which they are comfortable and delaying or blocking others. 50

Cf. Philip Laundy, Parliaments in the Modern World (1989) p. 95.

570

chapter d

109. In most national parliaments there are numerous provisions in the Rules of Procedure that ensure procedural participation, whether regulated in relation to the individual mp, the party groups, qualified minorities or the “opposition” as such. 110. A basic principle of parliamentary procedure, which is seldom explicitly stated in the national constitutions, but which is nevertheless often to be found by way of interpretation, is that of equality of the representatives. As stated, a parliament is an institution consisting of the elected representatives, with the representative as a main legal entity, based on the idea that they should in principle all have the same rights and obligation, whether belonging to the governing party or the opposition. 111. This principle of equality is stated in Resolution 1601 (2008) of the Parliamentary Assembly: “equal treatment of Members of Parliaments, both as individual members and as members of a political group, has to be ensured in every aspect of the exercise of their mandate and of the operations of parliament”. The Venice Commission, for its part has also in its Code of Good Practice in the field of Political Parties recalled the necessity to respect the principle of equality.51 112. Under eu law the principle of equality of the members of the European Parliament (meps) has been judicially recognized by the Court of First Instance, which in 2001 held that “the conditions under which Members who have been democratically vested with a parliamentary mandate must exercise that mandate cannot be affected by their not belonging to a political group to an extent which exceeds what is necessary for the attainment of the legitimate objectives pursued by the Parliament through its organisation in political groups.”52 113. To the extent that the principle of equality of mps is limited, then that is normally for the sake of efficiency, since it would in many cases be impossible to get decisions adopted in an assembly with equal rights of procedural participation 51

52

Cf. para 51: “The general principles inspiring this Code apply also to performance in office and to situations where parties are in opposition”. This is elaborated in the explanatory memorandum: “For the purpose of preserving political pluralism, as a necessary element for representative democracy to function properly, the constitutional principle of equality imposes obligations both on the states and political parties. Among the latter, the principle implies that incumbent parties should not abuse or seek advantage from their ruling position to create discriminatory conditions for other political forces but respect equality in inter-party competition”. cfi, judgment of 2 October 2001, Martinez and De Gaulle v. European Parliament, case T-222/99, T-327/99 and T-329/99, paragraph 202.

99 Report on the Role of the Opposition

571

for all members. The principle of equality of mps is therefore normally supplemented by a principle of proportional representation and participation by party groups. 114. As for the more concrete and detailed rights of procedural participation there are a large number of issues that merit attention, corresponding to the many functions and procedures of a modern parliament. This is reflected in Resolution 1601 (2008), where the Parliamentary Assembly has laid down an extensive and detailed list of procedural rights that should be guaranteed for opposition members. The main categories include: – Participation in the “supervision, scrutiny and control” function, through a number of specified procedural rights (2.2.1 to 2.2.9) – Participation in the organization of legislative work (2.3.1 and 2.3.2) – Participation in the legislative procedures (2.4.1 to 2.4.4) – Participation in parliamentary committees’ work (2.5.1 to 2.5.5) – Participation in political decisions (2.6) – Participation in the constitutional review of laws (2.7) 115. The Venice Commission commends the Parliamentary Assembly for having identified this list of procedural rights vital for democratic and legitimate parliamentary decision-making, and reiterates that these should be implemented by national parliaments in the member states of the Council of Europe. 5.3 Rights of Parliamentary Supervision and Scrutiny of the Executive 116. Of the basic functions that almost all parliaments fulfil besides adopting laws and budgets, one of the most important is that of supervision and scrutiny of the government and the administration (the executive) – sometimes also referred to as parliamentary oversight, inquiry or control.53

53

Although this basic function is common to all democratic parliaments, the terminology varies. In some parliaments, such as the Scandinavian ones, the concept is “parliamentary control”, but the word “control” is then applied in a more narrow sense than usual in English, covering only (or mostly) ex post supervision and inquiry (not ex ante influence). In the us Congress the term is “oversight” (or “congressional oversight”), which is often used in international literature on the subject, sometimes as “legislative oversight”. In the uk the same function is at least partly covered by the concept of parliamentary “scrutiny”. The term “parliamentary control” can be used in a number of different ways (inspect, scrutinize, examine, debate, approve, challenge, censure, influence), cf. Gregory “Parliamentary Control and the Use of English”, Parliamentary Affairs 1990 p. 75. The function of parliamentary “control” is closely tied to the concepts of ministerial responsibility and accountability.

572

chapter d

117. In constitutional theory, oversight is conducted by parliament as an institution. In reality, this is first and foremost a function for the opposition, which serves to guarantee the principle of separation of powers inherent in constitutional theory. The real adversaries are not parliament and the government, but the opposition and the government party (or parties). Sometimes oversight can take place in a parliamentary atmosphere of consensus. But more often it is a process of political controversy, with the opposition attacking the government ministers and the government mps defending them. When parliamentary oversight leads to exposure of faults and failures, this can result either in ministers being held accountable, which is the more dramatic outcome, or in parliament trying to redress the problem by passing new legislation, amending the budget or by other means. Oversight cases are often of public interest, with the activities of the opposition followed and supplemented by the media. 118. Effective oversight requires that parliament has the power and competence to inquire into the actions of the government and the administration, by demanding information and documents, calling hearings, setting up commissions of inquiry, and etcetera. Most parliaments have special standing committees on oversight and control, and in many countries there are also external control institutions reporting directly to parliament, such as parliamentary ombudsmen, auditors and others.54 In the United Kingdom, government ministers are regularly exposed to “question time”, as is the Prime Minister. And parliamentary committees exist which both deal with general matters (such as human rights) and also the work of the major government departments. Opposition members usually chair each committee. 119. The inherent challenge (and paradox) of oversight in parliamentary systems is that the government can usually rely on the support of a majority of 54

The originally Swedish invention of an “ombudsman” for handling complaints against the administration has in modern times been copied by most European countries (as well as the eu), and in most systems this is a parliamentary institution, reporting directly to Parliament. As for the audit of the government and the administration, there are different traditions in Europe, with some countries having special “Courts of Auditors”, and others “Auditor Generals”, which may belong constitutionally either to the legislative or the executive branch. But in many countries the audit institution is directly or indirectly attached to parliament, reporting directly to it, as an integral part of the parliamentary oversight system. In such systems, it may be of great importance to what extent the audit institution is dependent or independent of the parliamentary majority, and to what extent a parliamentary minority can ask or instruct it to inquire into particular cases. In some countries there are also special external parliamentary bodies for oversight of the secret services (in others this is done within the executive branch and/or by parliament itself through special committees).

99 Report on the Role of the Opposition

573

members of the very same institution that under the constitution is supposed to supervise and hold it accountable. And this majority will often have little or no interest in uncovering politically controversial and sensitive cases. For this reason, it is often held that parliamentary opposition and minority rights are of particular importance with regard to the oversight function (ex post supervision and control). 120. In most parliaments a basic element of the oversight function is the right of any mp to ask questions to the ministers, and to table motions and voice criticism. This, however, is a low- intensive form of oversight. To the extent that oversight is conducted through established procedures that the majority cannot circumvent, then this also ensures a certain level of control. If for example there are procedures requiring that the government report to parliament on certain issues, or that the reports of the auditor general and the ombudsman shall be subject to parliamentary scrutiny, then this may provide the opposition with a way of addressing government faults and failures that the majority cannot easily block. In an open society it can also be politically difficult for the majority government faction to refuse demands for parliamentary inquiries into matters that are publically known – though this depends on the political culture and the power of the independent media. 121. For more intensive parliamentary oversight of specific cases, however, there remains in most parliaments the problem that launching inquiries, demanding information, calling hearings and other important measures require a majority decision, which in effect means agreement with the government faction. 122. For this reason there are some political systems in which the parliamentary opposition, usually in the form of a certain qualified minority, have been granted not only rights of procedural participation, but also the legal competence to adopt decisions to initiate inquiries, demand information, set up special committees or commissions etcetera. This is not a common European tradition. There are many parliaments without such instruments, and for those that have it, it is regulated in different ways. But there are important examples. One of the oldest and best known is Article 44 of the German Constitution, which gives 1/4 of the representatives of the Bundestag the right to demand a commission of inquiry.55 Other examples include Article 55

Cf. Article 44 (1) that “The Bundestag shall have the right, and on the motion of one quarter of its Members the duty, to establish a committee of inquiry, which shall take the requisite evidence at public hearings”. A seemingly similar provision is found in the rules on the European Parliament in Article 226 of the Treaty on the Functioning of the European Union (formerly Article 193 ect), which states that “In the course of its duties,

574

chapter d

115 of the Finnish Constitution, which gives ten members of parliament the right to demand that the Constitutional Committee initiates an inquiry into the conduct of a government minister, and a recent reform of the Rules of Procedure of the Norwegian Parliament, which gives 1/3 of the members of the Committee on Constitutional Control the right to initiate inquiries and call hearings. According to Article 76 of the “The former Yugoslav Republic of Macedonian” Constitution a proposal for setting up a commission of inquiry may be submitted by 20 representatives (out of 120). 123. In Resolution 1601(2008) the Parliamentary Assembly has taken inspiration from systems giving special oversight competences to parliamentary minorities, and recommends that a qualified minority of 1/4 of the representatives should have the legal competence to demand the following measures: – A plenary sitting (2.2.5) – A debate on a specific issue (2.2.7) – The setting-up of “a committee of inquiry or a parliamentary mission of information and to become members thereof” (2.2.8) – An extraordinary session (2.3.2) – Committee hearings (2.5.4) 124. The Venice Commission in principle endorses the idea of giving a qualified minority of mps special powers of inquiry with regard to the oversight function of parliament. At the same time, it should be pointed out that there is no common European tradition for this, that such rules are still relatively rare, and that the threshold of 1/4 recommended by the Assembly in most political systems would be regarded as rather low. The exact reach and contents of such rules should be carefully tailored to the national constitutional and political tradition and context. 5.4 The Right to Block or Delay Majority Decisions 125. A different kind of opposition (minority) right, but arguably the most profound, is the right of a parliamentary minority to block or delay certain parthe European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law…”. There is however the crucial difference that the request of 1/4 of the meps does not mean that the ep is obliged to set up an inquiry, as this still has to be decided by the plenary by ordinary majority vote. Unlike Article 44 of the German Constitution, Article 226 tfeu is in other words not designed to confer rights on the minority.

99 Report on the Role of the Opposition

575

ticularly important majority decisions. This is the ultimate example of “negative power” – which functions not only as a guarantee for the minority groups in parliament, but also for the interests and groups represented by them – as their protection against what is sometimes referred to as the “tyranny of the majority.” 126. The most basic and widespread of these rights is the competence of a parliamentary minority to block constitutional amendment. In all European countries constitutional amendment is subject to special requirements, the most common of which is a qualified majority vote in parliament. In its 2009 “Report on Constitutional Amendment” the Venice Commission examined amendment clauses in the constitutions of all the member states of the Council of Europe, and found that the most widespread requirement is a 2/3 majority in parliament, though there are also examples of 3/5, 3/4, 4/5 and 5/6.56 When assessing these rules, the Venice Commission held, inter alia, that: 94. The main purpose and effect of a qualified majority requirement is to (i) ensure broad political consensus (and thereby strengthen the legitimacy and durability of the amendment), and (ii) protect the interests and rights of the political opposition and of minorities. Such a requirement in effect gives a minority (of a certain size) a veto on constitutional amendment. 127. Rules on qualified majority for constitutional amendment will usually serve to protect the interests of the parliamentary opposition (and can also give it a certain bargaining leverage in other cases), as long as the government party (or parties) does not have the “supermajority” required to pass amendments by itself. This is part of the wider and more implicit protection of political minority interests. 128. In addition to constitutional amendments, there are some constitutions that require a qualified majority for certain other parliamentary decisions of particular importance. One example, which is mentioned above, is the requirement in some parliaments of a qualified majority for changing the rules of procedure. Another example is the requirement of a qualified majority for parliamentary decisions involving transfer of national sovereignty to international organizations. This is to be found, inter alia, in Article 93 of the Norwegian 56

Cf. “Report on Constitutional Amendment” adopted in December 2009, CDL-AD(2010)001. The requirement of a qualified majority in parliament is usually supplemented by one or more other hurdles, such as a special time delay or a popular referendum. In its final conclusions the Venice Commission held in paragraph 241 that “A good amendment procedure will normally contain (i) a qualified majority in parliament, which should not be too strict, and (ii) a certain time delay, which ensures a period of debate and reflection”.

576

chapter d

Constitution, which states that such decisions require a 3/4 majority, and in Article 20 of the Danish Constitution, which states that they require either a 5/6 parliamentary majority or a popular referendum (with strict requirements). Latvia, Poland and Slovenia also provide for a 2/3 majority in their constitutions.57 129. Some constitutions have provisions that provide a qualified minority with the right not to block but to delay majority decisions. An example is Article 41 (3) of the Danish Constitution, which gives a qualified minority of 2/5 the right to demand that the third and final hearing on legislative proposals should be postponed up to 12 days, in order to give the opposition time to raise a public debate. A more radical provision is Article 42 of the same constitution, which gives a qualified minority of 1/3 the right to demand that a statute passed by parliament must be put to a public referendum before it can be enacted. This competence has only been used once (1963), but its existence is still argued to have a certain political effect. A third example is Chapter 2 Article 12 of the Swedish Constitution, which gives a qualified minority of more than one sixth of those present and voting the possibility, with certain exemptions, to impose a twelve months respite in respect of draft legislation affecting fundamental rights and freedoms dealt with in Chapter 2. 130. The Venice Commission concludes that qualified majority requirements (with corresponding qualified minority rights) are to be considered an important tool for certain basic parliamentary decisions, in particular constitutional amendment, but that apart from this it should be used with great care, so as not to override the basic principle of legitimate majority rule.58 5.5 Constitutional Review of Laws and Other Acts of Parliament 131. The rules on constitutional review of laws (and other acts of parliament) differ in the member states of the Council of Europe – with variations inter alia as regards when review can be done (before or after adoption), which

57 58

See Article 90 of the Latvian Constitution, Article 68 of the Polish Constitution and Article 3a of the Slovenian Constitution. An infamous historical example of minority veto rights going (much) too far is the power of veto given to any single Polish nobleman in the national assembly (the Sejmen) in the 17th and 18th century. This lead to great political problems, and has later given rise to the expression “Polish parliament” (Swedish and Norwegian Polsk riksdag, Danish Polsk rigsdag, German Polnischer Reichstag) as a term describing an assembly in which no real decisions can be made.

99 Report on the Role of the Opposition

577

institutions can request review, which institutions conduct the review, the criteria and intensity of the review, and a number of other factors.59 132. A widespread model in Europe, however, is that a parliamentary minority can demand constitutional review of laws, either before or after adoption, usually from the Constitutional Court.60 This is a competence that gives the opposition (of a certain size) the chance to bring the laws and other acts of the parliamentary majority before an independent judicial authority. This competence can in itself give the minority a certain political leverage, and may slow down the adoption or enactment of new (majority) legislation. Whether it actually stops such legislation depends on the contents of the law, the strictness of the constitution, and the will, composition and traditions of the national Constitutional Court. 133. The qualified minority required for requesting constitutional review of laws differs. In some parliaments it is 1/3 of the members (Austria, Slovenia), or 1/4 (Germany),61 or 1/5 (Albania, Bulgaria, Lithuania, Slovakia and Turkey). In others it is a fixed number, such as in France (60 deputies or 60 senators), in Poland (50 deputies or 30 senators) or in Spain (50 deputies or 50 senators). 134. In some countries there is a tradition of the opposition referring a great number of parliamentary acts for constitutional review. One example in France, where the low threshold of 60 members out of the 577-member assembly (or 60 senators out of 348) has led to a practice under which any act of legislation of a certain importance and controversy is likely to be referred to the Constitutional Council, which in this way functions to a considerable extent as an institution for assessing the objections of the parliamentary opposition. 5.6 Minority Protection against Persecution and Abuse 135. So far the report has examined what (positive) rights and competences are or may be given to parliamentary opposition or minority interests. An assessment of the legal status of the opposition in a democratic parliament is however not complete without also covering rules on special legal protection of the 59

60 61

In some countries there is no such review at all except by Parliament itself, such as in the Netherlands. If the Dutch Parliament reaches the conclusion, sometimes against the opinion of the Council of State, that a Bill is in conformity with the Constitution, and adopts the law, it is sacrosanct, unless a court holds it to be in violation of an international self executing obligation. In Sweden, constitutional review (ex ante) of draft laws is done by a special “Council on Legislation” at the request of a parliamentary committee or at least 5 of its members. Under the German Constitution the requirement used to be 1/3, but this was changed to 1/4, thus strengthening minority rights.

578

chapter d

parliamentary minority against majority persecution and abuse. Here there is a fairly common European tradition that ensures particular formal protection for: – Political parties (against prohibition and dissolution) – Individual mps (“parliamentary immunity”) 136. Such rules are not reserved for the opposition but cover all political parties and mps. However, they function first and foremost as a minority guarantee against the political majority, both in government and in parliament.62 Both sets of rules have previously been extensively examined by the Venice Commission, and reference is made to the 1996 “Report on the Regime of Parliamentary Immunity” and the 1999 “Guidelines on prohibition and dissolution of political parties and analogous measures,” which was further elaborated by the Commission in a 2009 report on prohibition of political parties in Turkey.63 137. Special protection against prohibition of (opposition) parties is guaranteed both at the European and in many countries at the national level. Under echr Article 11 the Court has recognized the special nature and democratic functions of political parties and stated that they should enjoy particular protection and may only be prohibited in exceptional cases and respecting strict criteria. Supplementing this with reference to European democratic standards, the Venice Commission in its guidelines on the subject has held that political parties may only legitimately be prohibited if they resort to or threaten with violence. This applies of course to political parties both inside and outside of parliament. 138. Special protection of individual mps in the form of rules on “parliamentary immunity” is not as such regulated at the European level.64 However, this is so 62

63

64

In 2008 the Public Prosecutor in Turkey launched a prohibition case against the governing majority ak Party, which only fell one vote short of being accepted by the Constitutional Court. Other than that, there are no examples in modern democratic European political history of political parties with a parliamentary majority being under threat of prohibition. For all practical purposes this is an opposition and minority issue. Cf. Report on the Regime of Parliamentary Immunity, CDL-INF (96) 7, adopted in June 1996; Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, CDL-INF(2000)001, adopted in December 1999; and “Opinion on the Constitutional and Legal Provisions relevant to the Prohibition of Political Parties in Turkey”, adopted in March 2009, CDL-AD(2009)006. Although parliamentary immunity as such is not regulated or protected in the echr, there are a number of cases in which the ECtHR has had to assess national rules on par-

99 Report on the Role of the Opposition

579

widespread at the national constitutional level as to form a common parliamentary tradition, which dates back to notions of sacrosanctity of representative office in the Roman Republic (tribunes) through the 1689 uk Bill of Rights and the French Revolution all the way to modern parliaments. 139. Today rules on parliamentary immunity for mps are to be found in various forms in the parliaments of all the member states of the Council of Europe, usually regulated in the constitutions themselves. Such rules may serve both as collective protection of parliament as an institution (against the executive) and as protection of the individual mps against both the executive and the parliamentary majority. 140. The 1996 Venice Commission report “On the Regime of Parliamentary Immunity” is based on a full comparative analysis of such rules in all European countries.65 In the report, the Commission identifies two main types of immunity, which are complementary: – Parliamentary non-liability (freedom of speech) – Parliamentary inviolability (freedom from arrest) 141. Of these, parliamentary non-liability in the form of a specially protected freedom of speech for mps is fairly uniform and undisputed in the great majority of European countries, though there are from time to time debates on the reach of the non-liability inter alia with regard to racist utterances. As pointed out by the Venice Commission in 1996, such rules provide not only protection against the executive and harassment by private parties, but also “an additional surety for parliamentarians vis-à-vis the majority opinion expressed in parliament itself”. As representatives of their constituents, minority mps may voice their opinions, even if these are very much against those of the majority.66 142. Immunity in the form of parliamentary inviolability (against civil and/or criminal prosecution) is a much more complex and controversial issue, where

65 66

liamentary immunity against fundamental rights laid down in the Convention, such as Article 6. In some of these cases, the Court has included comparative overviews and made comments on the institution of national parliamentary immunity, cf. inter alia cases A. v. the United Kingdom; Cordova (no. 1); Cordova (no. 2) and Tsalkitzis, C.G.I.L. and Cofferati v. Italy, no. 46967/07, Judgment of 24 February 2009, and Kart v. Turkey no 89175/05, Judgment of 3 December 2009. Cf. Report on the Regime of Parliamentary Immunity, CDL-INF (96) 7, adopted in June 1996. In some countries parliamentary non-liability is absolute. In others there may be modifications, or it may be lifted by a decision of parliament itself, but then subject to a requirement of qualified majority, which still to some extent may protect the opposition.

580

chapter d

there are a greater variety of rules in European countries – ranging from systems with very wide immunity against all sorts of prosecution to countries with no such particular protection of mps at all. The challenge is to find a balance, under which legitimate opposition interests are protected, while at the same time respecting the rule of law and not unnecessarily obstructing the course of justice. If parliamentary freedom from arrest is taken too far, then this might be misused in order to escape justice, which has been a problem in several European countries in modern times. 143. Parliamentary immunity may serve as an important part of democracy, but it sometimes has to be weighted against other basic principles. This has been a subject in several cases under the echr, inter alia in the recent 2009 case of Kart v. Turkey where the Court held, inter alia, that: The Court has already acknowledged that the long-standing practice for States generally to confer varying degrees of immunity on parliamentarians pursues the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary (…). Different forms of parliamentary immunity may indeed serve to protect the effective political democracy that constitutes one of the cornerstones of the Convention system, particularly where they protect the autonomy of the legislature and the parliamentary opposition. 144. In its 1996 report, the Venice Commission pointed out that “in certain countries a tendency to regulate in law the conditions for lifting parliamentary immunity can be observed, or else an effort to define fixed, objective criteria as far as possible. This trend is prompted by concern for stricter application of the principles of rule of law and by the demands of safeguarding fundamental freedoms”. 145. The Venice Commission in general endorses the basic principle that special legal protection should exist for the exercise of legitimate opposition functions of the parliamentary minority, both in the form of protection against prohibition of parties and in the form of parliamentary immunity for the individual mps. This should however not go further than required in order to protect legitimate political opposition and minority interests, and should not be used as an instrument in order to obstruct justice. 6 Responsibilities of the Opposition 146. When analysing the rights and competences of the parliamentary opposition it is also necessary to ask whether this could or should correspond with certain particular responsibilities and obligations. 147. A basic obligation of the political opposition is to conduct its functions within the framework of the law, including the national constitution, ordinary

99 Report on the Role of the Opposition

581

civil and criminal law and parliamentary rules of procedure. Opposition parties may advocate changes to the law, but as long as these are not passed, they are obliged to respect the law, like everybody else. Subject to the modifications of parliamentary immunity, the opposition may be held accountable for any unlawful activity, like any other organization and individual. Most parliaments also have disciplinary internal sanctions for party groups and mps breaking the rules of procedure, and this is appropriate as long as they are legitimately justified and proportionate. Many countries have special rules on prohibition of political parties, and the Venice Commission has acknowledged that this may be legitimate if a political (opposition) party uses or threatens to use violent and undemocratic means to undermine a democratic regime.67 148. Apart for the self-evident duty to respect the law, it is difficult to establish any particular legal obligations for the opposition. It is, however, not uncommon to speak of certain opposition “responsibilities” or “obligations”, which are inherent in the notion of a “loyal” opposition, and which are of a political and moral nature. The basic idea is that political opposition should be conducted in a constructive manner, which fulfils the legitimate functions of the opposition, inter alia to present real political alternatives and to supervise the executive (see section 3).68 149. In a well-functioning parliamentary democracy there is a balance between the majority and the minority, which creates a form of inter-play that ensures effective, democratic and legitimate governance. This cannot be taken for granted, and there are many countries also within Europe that present a different picture. There are at least two main forms of abuse or dysfunction of the role of the opposition. Either the opposition completely blocks effective governmental work and/or effective parliamentary work, or the opposition does not offer any alternatives to the work of the government and/or to the proposals of the parliamentary majority and is therefore not visible in the political debate. 150. Such negative effects are usually not primarily caused by deficient legal rules on the work in parliament and the role of the opposition, but are due to 67

68

Cf. “Guidelines on prohibition and dissolution of political parties and analogous measures” adopted by the Venice Commission in December 1999, CDL-INF(2000)001, and “Opinion on the Constitutional and legal provisions relevant to the prohibition of political parties in Turkey”, adopted in March 2009, CDL-AD(2009)006. The borderline between what is constructive or not may of course in itself be disputable, and “The ‘determined opposition’ of one group can easily be seen as ‘irresponsible obstruction’ by another”, as pointed out by Philip Laundy, cf. Parliaments in the Modern World (Dartmouth 1989) p. 93.

582

chapter d

deeper problems within the political culture of a country. The prerequisite for effective work of the opposition in a democratic system is that different worldviews and different political convictions existing in society are represented in Parliament. If candidates and parties do not have an identifiable political profile, it is difficult to build up a constructive dialogue on different political options. Such a faceless party system might either lead to a policy of confrontation with the opposition acting as a persistent objector to every political move or to a fictive opposition not offering any alternatives. Such problems cannot be solved by legal reform alone, and must also be confronted by going to the roots of the problem. But creating a good legal framework within which parliamentary politics can develop and mature is never a bad idea and may often contribute substantially to the development of a democratically sound national political culture. 151. The Venice Commission is of the opinion that there is a certain link between granting the opposition formal rights, and expecting in return a degree of constructiveness and responsibility. In systems where the position of the parliamentary opposition rests mainly on political traditions and conventions (and the implicit self-restraint of the majority), the ­question of oppositional legal rights and competences is arguably not so i­mportant – since any misuse by the opposition can be sanctioned by the majority. But to the extent that the opposition (minority) is given explicit legal rights, then this may arguably also entail certain moral (non-legal) responsibilities. If for example a quarter of the representatives have the competence to call a public hearing or set up a parliamentary commission of inquiry, then this should be done only in important cases where there are real indications of wrongdoing – and not used as a tool for harassing and obstructing legitimate majority government. 152. The idea of a shared moral and political responsibility for all the parties represented in parliament to contribute constructively and loyally to the political processes are all the more important in countries where the democratic structures are relatively new, and have not yet had time to settle. It is also particularly important in systems where different political parties control different state institutions, such as in periods of “cohabitation” in presidential and semipresidential systems, or in two-chamber parliaments where different parties each control one. In such cases restraint is necessary in order to ensure that the business of government in the national interest is not obstructed by narrow party political considerations. 153. In its 2009 Code of Good Practice in the Field of Political Parties the Venice Commission pointed out the balance between the rights and responsibilities of opposition parties:

99 Report on the Role of the Opposition

583

53. […] Opposition function implies scrupulous control, scrutiny and checks on authorities and officials behaviour and policies. However, good governance advises that parties in opposition (as well as ruling parties) to refrain from practices that may erode the democratic debate and which could eventually undermine the trust of citizens in politicians and parties.69 154. In the Explanatory Report to the Code, the Venice Commission further elaborated how good practices for responsible and constructive opposition can be laid down in the party statutes: The main duties of parties placed in the opposition are checking and criticising, always in a responsible and constructive manner, as well as rendering the majority in power to account, since citizens have to know what government does, and why, if they are supposed to govern. These duties are implicitly recognised, self-imposed and regulated in the provisions of some parties’ statutes therefore embodying good practices in this area. For instance, internal party rules imposing reporting obligations to the parliamentary group so that the party can evaluate the fulfilment of the group’s task of watching over the government’s activity or supporting the application of the party political project when it is in government. 155. Furthermore, some parties present good models of organisational structures which could promote active and sound political opposition through constant work on the different policy areas which constitute the party (shadow) programme, and which help keep the machinery of the party functioning as an alternative (shadow) government always ready to replace the party in public office. Examples of such structures can be found in Spain, in the Sectorial Organisations and Secretariats of the Spanish Workers’ Socialist Party, the Executive Secretariats regulated by the People’s Party and some bodies within the United Left, as well as in the Standing Committees for policy development of the Green Party in Ireland. 156. In their report to the Council of Europe Forum for the Future of Democracy in 2007 on the subject of “The role and responsibilities of the opposition” the general rapporteurs pointed out that: 10. Both the majority and the opposition have every interest to keep in mind that no one belongs to the majority or to the opposition forever and 69

Cf. CDL-AD(2009)021.

584

chapter d

that a majority will sooner or later be part of the opposition and vice versa. Hence, it is in the interest of the majority not to take decisions before the opposition has had the opportunity to scrutinise proposals and put forward alternatives. Conversely, the opposition should not perceive its role as a mere mechanism of obstruction and should contribute substantially to the decision-making process.70 157. The balance between rights and responsibilities is also reflected in the last paragraph of Resolution 1601 (2008) where the Parliamentary Assembly after laying out in great detail the rights of the opposition briefly concludes by emphasizing also that: 5. The political opposition in parliament shall show political maturity and should exercise responsible and constructive opposition, by showing mutual respect, and using its rights with a view to enhance the efficiency of parliament as a whole 158. On this basis the Venice Commission concludes that the more formal rights and competences the opposition (minority) is given within a constitutional and parliamentary system, the greater the responsibility of the same opposition not to misuse these powers, but to conduct their opposition in a way loyal to the basic system and the idea of legitimate and efficient democratic majority rule. This however, is not an issue that can be legally regulated, or perceived as any form of formal “responsibility”, but is rather to be seen as a political and moral obligation. 7 Summary and Conclusions 159. Democracy is today stronger in Europe than ever before in history. The democratic political structures and traditions of Western Europe have after the Second World War consolidated and matured, and have in the two last decades spread to Central and Eastern Europe. From a political point of view Europe has reached a reasonably advanced stage of democratic development. From a legal point of view basic democratic principles are fairly well protected both in the national constitutions and in common European legal systems, such as the echr and eu law. 70

Cf. Conclusions by the General Rapporteurs (mm. Gross, Whitmore and Tarschys) to the Council of Europe Forum for the Future of Democracy meeting in Stockholm/Sigtuna in June 2007, paragraph 10.

99 Report on the Role of the Opposition

585

160. The formal and legal institutionalisation of democracy is however a continuous process, which can always be improved. As regards the role and functions of the political opposition in general – and the parliamentary opposition in particular – this has not legally reached the same stage of evolution as it has politically. There are few common European rules or standards that protect the parliamentary opposition and minorities as such, and many national constitutional systems do not really regulate these issues in an adequate manner. 161. The Venice Commission concludes that European democracy has now reached a stage where it is appropriate and interesting to explore the ways and means by which the role of the parliamentary opposition can be formally better regulated and protected. Given that a proper balance is struck between democratic majority rule and legitimate minority interests such institutionalisation should serve to improve parliamentary procedures and to strengthen the democratic robustness of the national political systems. 162. On this basis the Venice Commission welcomes and endorses Resolution 1601(2008) by the Parliamentary Assembly as a groundbreaking new soft law instrument for inspiring and developing formal rules on the rights and competences of the parliamentary opposition in the member states of the Council of Europe. 163. The Venice Commission also welcomes the trend pointed out by the Assembly that there appears in many European countries to be greater interest in the role and function of the parliamentary opposition and minorities, and stands ready to participate in these processes if called upon to do so. 164. The Venice Commission considers that although there neither is nor should be any single European model for the more detailed regulation of parliamentary opposition and minority rights, there is still a common European tradition and culture of tolerant and liberal parliamentary politics, which normally allows the opposition wide room of manoeuvre. A democratic parliamentary system presumes an ethic of self-restraint on the part of the majority, with respect for minority rights and interest. Not all possible advantages should be taken, nor are they taken in mature parliamentary systems. 165. In parliaments where such a political culture exists, often with “unwritten” parliamentary conventions, the need for legal opposition and minority guarantees is less. In new democracies, without such democratic traditions, the need for formal rules protecting the opposition may often be stronger. 166. The Venice Commission would also point to the distinction between direct and indirect (explicit and implicit) legal protection of the interests of the polit-

586

chapter d

ical (and parliamentary) opposition, and between protection in the wider and the more narrow sense. In most member states of the Council of Europe there are only a few (if any) legal provisions directly and explicitly regulating parliamentary opposition and minority rights and interests. There is however a number of legal provisions both at the European and national level that in a wider sense implicitly or indirectly serve to protect (parliamentary) opposition interests. Thus these interests are legally far better protected than what they may appear at first sight. 167. The basic protection for the parliamentary opposition is guaranteed at the echr level by the fundamental rights to free and fair elections, freedom of expression and opinion, freedom of assembly and a number of other basic principles. These rights are in most European countries also protected at the national constitutional level. To some extent the constitutional protection also covers more issues more directly related to parliamentary minorities, such as parliamentary immunity. 168. The more explicit and detailed legal regulation of parliamentary opposition and minority rights is usually related to the individual mps, the party groups (factions) or to a qualified minority of representatives. The Venice Commission considers that this is in most cases a better form of regulation than conferring rights on the “opposition” as such, since this is a difficult concept, with wide differences between the parties concerned and between national traditions. 169. The Venice Commission considers that there are certain categories of parliamentary opposition and minority rights that are of particular important and should be generally recognised. These are (i) procedural rights of participation, (ii) special rights of supervision and scrutiny of the government, (iii) rights of veto or delay for certain decisions of a particularly fundamental character, (iv) the right to demand constitutional review, and (v) protection against persecution and abuse. 170. In each of these categories the national constitutional system should recognise and guarantee parliamentary minorities a certain level of legal and actual protection. 171. The existence of the Venice Commission is based on the idea that democracy can and should be promoted and protected “through law.” Legal recognition of certain parliamentary opposition and minority rights is a core issue in this regard. At the same time, the most important element for ensuring good parliamentary democracy is a tolerant and mature political tradition and culture, under which the governing faction does not abuse its power in order to suppress the opposition, and the opposition for its part engages actively and constructively in the political processes.

100 Guidelines on Political Party Regulation

100

587

Guidelines on Political Party Regulation by osce/odihr and Venice Commission

CDL-AD(2010)024, Study-No. 595/2010, adopted by the Venice Commission, Venice (Italy), 15–16 October 2010 (84th Plenary Session) (Editors’ Note: The original of the following document contains footnotes and endnotes which are counted separately. This makes it difficult and confusing to follow the references. For the purpose of clarity and in order to facilitate the use of the document, in the following version all endnotes were transformed into footnotes and enumerated consistently.) I Foreword 1. Political parties are a critical means by which citizens participate in their government and representative democracy is realized. While the role and importance of parties has long been established, specific legal regulation of parties is a relatively recent development. Although many states using a party based system of governance now refer to the role of political parties in the constitutions or other laws, the first instances of legislation aimed directly at political party regulation were not until the 1940s. Even today with the development of legal regulation of political parties, the degree of regulation in states varies significantly due to differences in the legal tradition and constitutional order. As a result, political parties are subject to a varying degree of regulation. Each country’s historical development and unique cultural context naturally preclude the development of a universal, single set of regulations for political parties. However, basic tenets of a democratic society, as well as recognized human rights, allow for the development of some common principles applicable to any legal system for the regulation of political parties. It is these principles that are dealt with in the following guidelines. II Introduction 2. These Guidelines on Political Parties together with the Interpretative Notes were prepared by the Panel of Experts on Political Parties of the Office for Democratic Institutions and Human Rights (odihr) of the Organization for Security and Co-operation in Europe (osce) in consultation with the European Commission for Democracy though Law (the Venice Commission) of the Council of Europe. The Document takes into account comments received from members of the Venice Commission who were consulted on the draft of these Guidelines.1 1 A Member of the Venice Commission (Mr Evgeny Tanchev of Bulgaria) and an expert of the Venice Commission (Mr Carlos Closa from Spain) participated in roundtables in 2009–2010 in Athens, Brussels and Munich where the Guidelines were discussed.

588

chapter d

3. The following Guidelines on Political Party Legislation, aim to provide an overview of issues regarding the development and adoption of legislation for political parties in democracies. The Interpretative Notes constitute an integral part of the Guidelines, and should be read in concert with them to ensure full understanding and development of relevant issues. 4. The legal regulation of political parties is a complex matter, requiring consideration of a wide range of issues. Political parties must be protected as an integral expression of the individuals’ right to freely form associations. However, given political parties’ unique and vital roles in the electoral process and democratic governance, it is commonly accepted for states to regulate their functioning insofar as is necessary to ensure effective, representative, and fair democratic governance. The approach to such regulation varies greatly across the osce region and in countries – members of the Venice Commission: from states that lack any particular legislation on political parties (regulating such bodies only under general laws governing associations) to the incorporation of provisions relating to the function of parties in an array of different laws (including specific political party laws, constitutions, general election laws, and laws relating to issues such as media and campaign financing). Recognizing these differences, as well as the great diversity of legal traditions (particularly in relation to democratic development, constitutional order, and the rule of law), the Guidelines and the notes are not intended to provide blanket solutions or to aid in the development of a single model law for use in all osce states. Rather, the Guidelines and the notes attached to them are intended to clarify key issues related to political party legislation and provide examples of potential good practices for states. 5. The Guidelines and interpretative notes are based on universal and regional treaties relating to the protection of human rights, evolving state practice (as reflected, inter alia, in judgments of domestic courts and the commitments of inter-governmental bodies), and the general principles of law recognized by the community of nations. In particular, the Guidelines reference relevant osce commitments related to democratic governance and to the guidelines and opinions of the Venice Commission on political parties in general and in concrete countries (in the form of opinions on the national legislation on political parties). The Guidelines offer a clear minimum baseline in relation to human rights obligations, thereby establishing a threshold that must be met by state authorities in their regulation of political parties. However, the Guidelines are intended not only as a reflection of existing obligations, but as a document that exemplifies good practices (measures that have proven successful in a number of states or that have demonstrably helped ensure that political party regulation respects fundamental human rights). Therefore, the text moves

100 Guidelines on Political Party Regulation by OSCE/ODIHR

589

beyond a summary of existing obligations and provides a synopsis of exemplary practices related to the regulation and functioning of political parties. It is critical to a proper understanding of these Guidelines that they in no way should be construed as a means of imposing undue restrictions on political parties. The framework principle upon which these guidelines have been developed is that of the Copenhagen Document, paragraph 7.5 which requires that, “participating States will respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination.” These guidelines are also based on several more pointed guidelines on political parties adopted by the Venice Commissions from 1999 to 2010.2 Notably, these guidelines are not intended to replace the said documents adopted by the Venice Commission in the past, but rather supplement and expand on them. In this way, the Guidelines should principally be seen as a means to protect the rights and freedoms of political parties while enacting only the minimum regulation necessary to ensure their proper functioning. 6. Political parties are private associations that play a critical role as political actors in the public sphere. Striking the appropriate balance between state 2 CDL-INF(2000)001 Guidelines on prohibition and dissolution of political parties and analogous measures adopted by the Venice Commission at its 41st Plenary Session (Venice, 10–11 December 1999), CDL-INF(2001)008 Guidelines and Report on the Financing of Political Parties: adopted by the Venice Commission at its 46th Plenary Meeting (Venice, 9–10 March 2001), CDL-AD(2004)007rev Guidelines and Explanatory Report on Legislation on Political Parties: some specific issues, adopted by the Venice Commission at its 58th Plenary Session (Venice, 12–13 March 2004), CDL-AD(2006)014 Opinion on the Prohibition of Financial Contributions to Political Parties from Foreign Sources adopted by the Venice Commission at its 66th Plenary Sessio CDL-INF(2000)001 Guidelines on prohibition and dissolution of political parties and analogous measures adopted by the Venice Commission at its 41st Plenary Session (Venice, 10–11 December 1999), CDL-INF(2001)008 Guidelines and Report on the Financing of Political Parties: adopted by the Venice Commission at its 46th Plenary Meeting (Venice, 9–10 March 2001), CDL-AD(2004)007rev Guidelines and Explanatory Report on Legislation on Political Parties: some specific issues, adopted by the Venice Commission at its 58th Plenary Session (Venice, 12–13 March 2004), CDL-AD(2006)014 Opinion on the Prohibition of Financial Contributions to Political Parties from Foreign Sources adopted by the Venice Commission at its 66th Plenary Session (Venice, 17–18 March 2006), CDLAD(2006)025 Report on the Participation of n (Venice, 17–18 March 2006), CDL- AD(2006)025 Report on the Participation of Political Parties in Elections adopted by the Council for Democratic Elections at its 16th meeting (Venice, 16 March 2006) and the Venice Commission at its 67th Plenary Session (Venice, 9–10 June 2006) and CDL-AD (2009)021 Code of good practice in the field of political parties adopted by the Venice Commission at its 78th plenary session (Venice, 13–14 March 2009).

590

chapter d

regulation of parties as public actors and respect for the fundamental rights of party members as private citizens, including their right to association, requires well-crafted and narrowly tailored legislation. Such legislation should not interfere with freedom of association. Indeed, a survey of practices within the OSCE region and in countries that are members of the Venice Commission has indicated that extensive regulation may not be necessary for the proper functioning of democracy, signifying that regulations that minimize legal control of party functions and clearly establish the limits of state authority may be most appropriate. The determination of the state’s proper role in the regulation of political parties requires consultation with the individuals and groups affected by such regulation as an integral part of the law drafting process. While it is not necessary that political parties be governed under different legislation than for general associations, ideally legislation should be developed that recognizes the unique role that parties play in a democratic society. The development of legislation aimed at articulating the rights and protections specific to political parties is the subject of the Guidelines. Further, as it is the implementation of such regulations and the voluntary creation of rules for inter-party conduct which often most affects the role of political parties in democracies, these provisions are also intended to provide guidance to parties and electoral stakeholders regarding the practical implementation of legislation. 7. The guidelines on Political Party Regulation were examined by the SubCommissions on Democratic Institutions at its meeting on 14 October 2010 and were adopted by the Venice Commission at its 84th Plenary Session (Venice, 15–16 October 2010). 8. While Section A contains the Guidelines, Section B, the Interpretative Notes, is essential to a proper understanding and interpretation of the Guidelines as it expands upon the principles articulated in Section A and provides examples of good practice. Part I (Sections 1–4) of Section B emphasizes the importance of freedom of association as it relates to the development and regulation of political parties; sets out general principles for regulation; identifies legitimate grounds for, and types of, restrictions; and examines relevant procedural issues. Part II (Sections 5–7) focuses on intra-party functioning, including restrictions on party association for individuals, internal democracy and party functions. Part Three (Sections 8–10) deals with the role of parties in elections, including issues such as candidacy requirements and ballot access. Part Four (Sections  11–14) deals with the funding of political parties, while Part Five (Sections 15–17) examines the system for regulation of parties and judicial protection of their rights. Annex A contains a list of selected universal and regional treaties dealing with rights relevant to political party regulation. Annex B includes selected case citations from the European Court of Human Rights.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

591

Annex C lists relevant Council of Europe (the Parliamentary Assembly and the Venice Commission) sources related to the proper functioning of political parties and Annex D provides examples of model political party codes of conduct. III Definition of “Political Party” 9. For the purposes of these Guidelines, a political party is “a free association of persons, one of the aims of which is to participate in the management of public affairs, including through the presentation of candidates to free and democratic elections.” IV The Importance of Political Parties 10. Political parties are a collective platform for the expression of individuals’ fundamental rights to association and expression and have been recognized by the European Court of Human Rights as integral players in the democratic process. Further, they are the most widely utilized means for political participation and exercise of related rights. Parties are foundational to a pluralist political society and play an active role in ensuring an informed and participative electorate. Additionally, parties often serve as a bridge between the executive and legislative branches of government and can serve to effectively prioritize the legislative agenda within a system of government. V Fundamental Rights Given to Political Parties 11. Freedom of association is the central right which governs the functioning of political parties. A set of recognized universal, European and other regional treaties has given the right to full exercise of free association, including for the formation of political associations, to all individuals.3 The European Court of Human Rights has also recognized the inherent relationship between freedom of association and its inter-dependent rights of freedom of expression and opinion and assembly. Although applicable international, European and other regional treaties conceptualize such rights as relevant to the individual, it is 3 [...] The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (iccpr), the Universal Declaration of Human Rights (adopted 10 December 1948 unga Res 217A (III)) (udhr), the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (adopted 4 November 1950, entered into force 3 September 1953, amended by Protocol No 11, European Treaty Series No 155, entered into force on 1 November 1998, which replaced Protocols 2,3,4,5,8,9,10 and repealed Articles 25 and 46 of the Convention) (echr), and the Copenhagen Document – Second Conference on the Human Dimension of the csce (Copenhagen, 5 June- 29 July 1990), Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce (Copenhagen Document).

592

chapter d

the free exercise of association itself which allows these protections to be extended to parties as a representative body of protected individuals. As such, groups of individuals choosing to associate themselves as a political party must also be awarded full protection of related rights. The rights of free association, expression, and assembly may only be limited where necessary in a democratic society. A number of useful non-binding recommendations on how these fundamental rights can be protected can be found in recommendations of the Parliamentary Assembly of the Council of Europe and guidelines and opinions adopted by the Venice Commission.4 VI

Section A. Guidelines Pertaining to Political Parties

1 Principles 12. The following principles provide overall guidance for the consideration of political party legislation. However, these principles must be read with the Interpretative Notes for a complete understanding and appreciation of the Guidelines. Further, these principles must be read together and no single principle should be applied to the exclusion of the remaining principles. 13. These principles recognise the important role that political parties have in a democratic society. The European Court of Human Rights has noted that political parties are a form of association essential to the proper functioning of democracy.5 The court has also noted: “It is in the nature of the role they play that political parties, the only bodies which can come to power, also have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena.”6 The court has described political parties as holding an “essential role in ensuring pluralism and the proper functioning of democracy.”7 a Principle 1. Right of Individuals to Associate 14. The right of individuals to associate and form political parties should, to the greatest extent possible, be free from interference. Although there are limitations to the right of association, such limitations must be construed 4 See Annex C to this document. 5 Case of the Refah Partisi (The Welfare Party) and Others v. Turkey. (40/1993/435/514) (European Court of Human Rights, February 13, 2003), paragraphs 87–89. 6 Case of the Refah Partisi (The Welfare Party) and Others v. Turkey. (40/1993/435/514) (European Court of Human Rights, February 13, 2003), paragraphs 87–89. 7 Case of the Refah Partisi (The Welfare Party) and Others v. Turkey. (40/1993/435/514) (European Court of Human Rights, February 13, 2003), paragraphs 87–89.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

593

strictly and only convincing and compelling reasons can justify limitations on freedom of association. Limits must be prescribed by law, necessary in a democratic society, and proportional in measure. Association with political parties must be voluntary in nature and no individual should be forced to join or belong to any association against their will.8 The broad protection given to the right of individuals to associate requires that political parties also be free from unnecessary interference. b Principle 2. The State’s Duty to Protect Individual Right of Free Association 15. It is the responsibility of the state to ensure that relevant legislation enacts necessary mechanisms and practices allowing the free exercise of the individual right to freely associate and form political parties with others, in practice. Further, the state has the responsibility to enact legislation to prohibit interference from non-state actors as well as refrain itself from such interference.9 Where violations of the right to free association occur, the state bears responsibility to provide reparation as appropriate and to ensure the cessation of the violation.10 As previously noted, limitations on the right to free association can be restricted only as prescribed by law and necessary in a democratic society.11 Any interference or limitation on the right of association is subject to the principle of proportionality, which is discussed later. c Principle 3. Legality 16. Any limitations imposed on the right of individuals to free association and expression should have their formal basis in the state’s constitution or parliamentary acts. Such limitations should not be the result of partisan political activity but based on a legitimate aim necessary in a democratic society. Thus, frequent changes in political party legislation may be seen as the result of political whim instead of as satisfying a compelling public interest. A state’s constitution and parliamentary acts should respect the right of association found in relevant international and regional instruments. The law must be clear and precise, indicating to political parties both what activities are considered unlawful and what sanctions are available in cases of violations. Political party 8 9 10 11

See the Universal Declaration of Human Rights, Article 20. See the United Nations Human Right Committee, General Comment 31, para. 8; General Comment 28, para. 31. United Nations Human Rights Committee, General Comment 31, paras. 15–16. See the International Covenant on Civil and Political Rights, Article 22(2).

594

chapter d

legislation should be adopted openly, following debate, and made widely available for public review to ensure individuals and political parties are aware of their rights and the limitations on such rights. d Principle 4. Proportionality 17. Any limitations imposed on the rights of political parties must be proportionate in nature and effective at achieving their specified purpose. Particularly in the case of political parties, given their fundamental role in the democratic process, proportionality should be carefully weighed and prohibitive measures narrowly applied. As stated above, the only restrictions imposed should be those that are necessary in a democratic society and prescribed by law. If restrictions do not meet such criteria, they cannot rightly be deemed as proportionate to the offence. The dissolution of political parties, or barring the establishment of a political party, is the most extreme sanction available and should never be imposed unless such measure is proportionate and necessary in a democratic society. e Principle 5. Non-discrimination 18. State regulations of political parties may not discriminate against any individual or group on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, or other status.12 The individual right to free association does not extend itself to require that a political party be required to accept members who do not share its core beliefs and values. However, the voluntary imposition of the principle of non-discrimination by political parties is welcome. f Principle 6. Equal Treatment 19. All individuals and groups that seek to establish political parties must be able to do so on the basis of equal treatment before the law.13 No individual or group wishing to associate as a political party should be advantaged or disadvantaged in this endeavor by the state, and regulation of parties must be uniformly applied. In order to eliminate historical inequalities measures can be taken to ensure equal opportunities for women and minorities. Temporary 12

13

See, for example; International Covenant on Civil and Political Rights, Articles 2, 26; European Convention on Human Rights, Article 14 (understood in light of echr – Protocol 12). The Copenhagen Document, paragraph 7.6 states; “participating states will; respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”

100 Guidelines on Political Party Regulation by OSCE/ODIHR

595

special measures aimed at promoting de facto equality for women and ethnic, racial or other minorities subject to past discrimination may be enacted and should not be considered discriminatory.14 g Principle 7. Political Pluralism 20. Legislation regarding political parties should aim to facilitate a pluralistic political environment. The ability for citizens to receive a variety of political viewpoints, such as through the expression of political party platforms, is commonly recognized as critical element of a robust democratic society. As evidenced by paragraph 3 of the Copenhagen Document and other osce commitments, pluralism is necessary to ensure individuals are offered a real choice in their political associations and vote choices.15 Regulations of political party functioning should be carefully considered to ensure they do not impinge upon the principle of political pluralism. h Principle 8. Good Administration of Legislation Pertaining to Political Parties 21. The implementation of legislation relevant to political parties must be undertaken by bodies that enjoy guaranteed impartiality both in law and in practice. The scope and authority of regulatory agencies should be explicitly determined by law. Legislation should also ensure that regulatory bodies are required to apply the law in an unbiased and non-arbitrary manner. Timeliness is one element of good administration. Decisions affecting the rights of political parties must be made in an expeditious manner, particularly those decisions which related to time sensitive processes such as elections. i Principle 9. Right to an Effective Remedy for Violation of Rights 22. Political parties should have recourse to an effective remedy16 for all decisions affecting their fundamental rights, including those of association, 14

15

16

Convention on the Elimination of all forms of Discrimination Against Women, Article 4(1); International Convention on the Elimination of Racial Discrimination, Article 2(2), and Council of Europe Framework Convention for the Protection of National Minorities, Article 4(2). See the Organization for Security and Cooperation in Europe, Document of the Moscow Meeting of the Conference on the Human Dimension of the csce (1991), para. 18 which states “The participating states again reaffirm that democracy is an inherent element in the rule of law and that pluralism is important in regard to political organizations.” See the Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights), Article 13, the International Covenant on Civil and Political Rights, Article 2(3), and the Universal Declaration of Human Rights, Article 8.

596

chapter d

expression and opinion, and assembly. While such rights are given to individuals, they can generally be enjoyed as a collective, requiring due recourse for allegations of violations brought not only by individuals but by the party as a whole. In the application of these rights, political parties should also enjoy full protection of the right to a fair and impartial hearing. Proper and effective redress should be available to parties if a violation is found to have occurred. The principle of effectiveness requires that some remedies be granted expeditiously. Remedies that are not provided in a timely fashion are insufficient to satisfy the requirement that a remedy be effective. j Principle 10. Accountability 23. Political parties may obtain certain legal privileges, due to being registered as a political party, that are not available to other associations. This is particularly true in the area of political finance and access to media resources during election campaigns. As a result of having privileges not granted to other associations, it is appropriate to place certain obligations on political parties due to their acquired legal status. This may take the form of imposing reporting requirements or transparency in financial arrangements. Legislation should provide specific details on the relevant rights and responsibilities that accompany the obtainment of legal status as a political party. VII

Section B. Interpretative Notes

1 Introduction 24. These Interpretative Notes are vital to a full understanding of the Guidelines, and should be read in concert with them. They not only expand upon and provide an essential interpretation of the Guidelines, they also provide examples of good practices aimed at ensuring the proper functioning of legislation and regulations for political parties. 25. Part I (Sections 1–4) of Section B emphasizes the importance of freedom of association as it relates to the development and regulation of political parties; sets out general principles for regulation; identifies legitimate grounds for, and types of, restrictions; and examines relevant procedural issues. Part II (Sections  5–7) focuses on intra-party functioning, including restrictions on party association for individuals, internal democracy and party functions. Part Three (Sections  8–10) deals with the role of parties in elections, including issues such as candidacy requirements, appearance on ballots, and the effect of parties in different electoral systems. Part Four (Sections 11–14) deals with the funding of political parties, while Part Five (Sections 15–16) examines the

100 Guidelines on Political Party Regulation by OSCE/ODIHR

597

system for regulation of parties and the restrictions on their dissolution. Annex A contains a list of selected universal and regional treaties dealing with rights relevant to political party regulation, Annex B includes selected case citations, while Appendix C provides examples of other relevant European guidelines on political parties and Annex D lists selected examples of party codes of conduct. VIII

Freedom of Association for Political Parties

1 The Regulation of Political Parties a Principal Definition of Political Parties 26. For the purposes of these Guidelines, a political party is “a free association of persons, one of the aims of which is to express the political will of citizens including through participation in the management of public affairs and the presentation of candidates to free and democratic elections.” This definition of parties includes associations at any level17 that function in order to present candidates for elections or exercise political authority through election to governmental institutions. 27. Although the legal capacity and standing of a political party may vary from state to state, political parties have rights and responsibilities regardless of their legal status. While political parties may be governed under laws separate from general associations, at a minimum they still retain the basic rights provided to other associations. b Legal Framework 28. Legal regulations on political parties vary substantially among osce states and countries members of the Venice Commission. However, the role and function of political parties in a democratic system should ideally be defined in the highest legal order of the state to ensure the stability and relative permanence of these provisions. Additionally, as constitutional provisions are often general in nature and may provide overly broad discretion for implementation, many states undertake to provide specific legislation dealing with the proper regulation and protection of political parties. Legal regulations that affect basic rights of political parties should be addressed by parliamentary legislation and not by regulations issued by an administrative authority. 17

This definition applies to parties at the national, regional, and local level. Parties also exist at an intra-state level (for example European Union parties). However, as these guidelines are intended to inform national legislation such parties are not discussed at length here.

598

chapter d

29. A specific law for political parties is not a requirement for a functioning democracy. In fact, a report compiled by the Council of Europe’s Venice Commission on different regulatory practices of osce states in the realm of political parties determined that such legislation is not necessary for the proper functioning of democracy, and may be most effective when quite minimal in its scope.18 Where regulations are enacted, they should not unduly inhibit the activities or rights of political parties. Instead, legislation should focus on facilitating the role of parties as potentially critical actors in a democratic society and ensuring the full protection of rights relevant to their proper functioning. While a specific law for political parties is not required, political parties must at a minimum retain the same basic rights afforded other associations as well as the rights to nominate candidates and participate in elections. 30. Parliamentary laws regulating political parties should be developed in conformity with both international human rights obligations and relevant jurisprudence. States commit themselves to such obligations through their ratification or adoption of international treaties.19 31. A set of identified universal and regional legal instruments form the basis for assessment of a state’s obligations relevant to the functioning of political parties. The International Covenant on Civil and Political Rights (iccpr) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) are the two main legally binding instruments applicable to states in this regard. In addition, the Convention on the Elimination of all forms of Discrimination Against Women (cedaw) is integral to understanding the states rule in ensuring gender equality with regards to political parties. Further, the rights and protections articulated in these legally binding documents are reiterated in International Customary Law through the Universal Declaration of Human Rights (udhr). In addition, there are a number of political commitments persuasive upon osce states which are relevant to a full understanding of these issues. Such instruments include, most notably, the Document of the Copenhagen Meeting of the Conference on the Human 18

19

Prohibition of Political Parties and Analogous Measures – Report, Adopted by the Venice  Commission at its 35th plenary meeting. (Venice, 12–13 June 1998) and CDL-AD(2009)006 – Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey, Adopted by the Venice Commission at its 78th Plenary Session. (Venice, 13–14th March 2009). Both the International Covenant on Civil and Political Rights, Article 2(2) and the Copenhagen Document, para. 5.7 requiring states to undertake a process of domestication, ensuring international human rights are reflected in domestic legislation. Paragraph 5.7 states that “Human rights and fundamental freedoms will be guaranteed by law and in accordance with their obligations under international law.”

100 Guidelines on Political Party Regulation by OSCE/ODIHR

599

Dimension of the csce (Copenhagen Document).20 The Council of Europe (through both the Committee of Ministers and the Parliamentary Assembly), the European Commission on Democracy through Law (Venice Commission) and other bodies of the Council of Europe21 have also published a number of guiding documents which can provide an understanding of good practice with regards to legislation concerning political parties. A recent addition to this body of instruments is the United Nations Convention Against Corruption (uncac) and the 1999 Council of Europe Criminal Law Convention on Corruption.22 32. Relevant excerpts from the above documents, as well as selected other universal and regional instruments applicable to the discussion of political parties’ role and function in democratic societies, can be found in Annex A to this document. Annex B further provides an illustrative list of relevant European Court of Human Rights case decisions, while Annex C provides a list of Council of Europe documents as referenced above. 2 Relevant Rights and Legal Status 33. The rights to free association and free expression and opinion are fundamental to the proper functioning of a democratic society. Political parties, as a collective instrument for political expression, must be able to fully enjoy such rights. 34. The right of political parties to free association should be accorded protection in a state’s constitution or by parliamentary act. This protection should 20

21

22

Other human rights treaties and declarations are particularly relevant to regulation of political parties in terms of gender equality. See, for ex. the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw), and the Beijing Declaration and Platform for Action. See also greco. The Group of States against Corruption (greco) of the Council of Europe is devoting its Third Evaluation Round (which started in 2007) i.a. to monitoring the implementation of the rules on transparency, supervision and sanctions contained in Recommendation Rec(2003)4 on Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns. The individual country reports published on greco’s website (www.coe.int/greco) contain recommendations for improvements and they are thus a valuable source of information for the reader on best practices and common insufficiencies. A partial horizontal overview is available in the study “Political Financing: greco’s first 22 evaluations”, by Mr Yves-Marie Doublet (France). Reports and information on all 47 Council of Europe member states and the United States of America will be available once the Third Evaluation Round is complete (end 2011). Signed in Strasbourg on 27 January 1999, entered into force on 1 December 2009, ets N° 173.

600

chapter d

include both a statement of the right as well as the obligation for its defense as a fundamental precursor to the proper functioning of democracy. 35. The right of free association has been expressly extended to political parties by the European Court of Human Rights.23 Article 11 of the European Convention on Human Rights (mirrored by Article 22 of the iccpr) protects the right to associate in political parties as part of the general freedom of assembly and association, which requires that “[…]everyone has the right to… freedom of association with others” without restrictions other than those which are “prescribed by law and are necessary in a democratic society.” 36. The case law of the European Court of Human Rights has further established the relationship between freedom of association and that of free expression and opinion in a number of judgments (see Refah Partisi (The Welfare Party) and Others v. Turkey, United Communist Party of Turkey and Others v. Turkey) in which it states that: “…protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.” 37. Freedom of expression and opinion (Article 10 of the echr and Article 19 of the iccpr) is partially dependent upon free association. As such, freedom of association must also be guaranteed as a tool to ensure all citizens are able to fully enjoy their rights of expression and opinion, whether practiced collectively or individually. 38. One function of political parties is to present candidates in elections. Thus, it is necessary that legislation protects the rights to elect and be elected, which are provided for by both international and regional instruments. 39. The regulatory framework should clearly define the legal status of political parties and grant them legal status as a unique form of association. 40. Parties should be given legal standing to present suits at law in cases alleging a violation of protected rights at any level of party formation. For instance, in cases of violations against the rights of a local level party branch, it may be allowable for the national level party to initiate legal proceedings in the name of the party as a whole. 41. As legal entities, with a set of specific rights and obligations, party members should also have recourse within the civil law system for abuse of the parties ­contractual obligations to members (as such exist), but only after exhausting internal dispute resolution mechanisms. Such recourse may be in addition to the 23

Case of the United Communist Party of Turkey and Others v. Turkey. (133/1996/752/951).

100 Guidelines on Political Party Regulation by OSCE/ODIHR

601

development of internal party structures for adjudication of intra-party disputes. However, as private associations (although they play an important role in public life) legal regulation of intra-party disputes must not infringe upon the free functioning of political parties in regards to their decision making procedures or policies. 3 The Importance of Political Parties as Unique Associations 42. Parties have developed as the main vehicle for political participation and contestation by individuals, and have been recognized by the European Court of Human Rights as vital to the functioning of democracy.24 The Parliamentary Assembly of the Council of Europe has further recognized that political parties are “a key element of electoral competition, and a crucial linking mechanism between the individual and the state” by “integrating groups and individuals into the political process…”25 As required by the Copenhagen Document, paragraph 3, political pluralism, as fostered by competition and opposition parties, is critical to the proper functioning of democracy. 4 General Principles a Presumption in Favor of Political Party Formation and Non-dissolution 43. As basic and fundamental rights, freedom of association and the interdependent right of freedom of expression should, insofar as possible, be enjoyed free from regulation. Any activities regarding association with and formation of political parties which are not expressly forbidden by law should therefore be considered permissible. The law should not forbid a political party from advocating a change to the constitutional order of the state.26 As protected in paragraph 7.6 of the Copenhagen Document, the right to establish and participate in political parties should be available to all individuals free from require24 25 26

Case of the United Communist Party of Turkey and Others v. Turkey. (133/1996/752/951.) (European Court of Human Rights, January 30, 1998). Resolution 1308 (2002), Parliamentary Assembly of the Council of Europe. “Restrictions on Political Parties in the Council of Europe Member States.” Socialist Party and others against Turkey (1998), para.41 states that “Notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.” The requirement that political parties be granted freedom of expression clearly infers their right to freely solicit opinions, including that or constitutional change, to the electorate.

602

chapter d

ments or undue regulation. States should enact and implement legislation respecting the general presumption in favor of political party formation, functioning, and protection from dissolution. In states which choose not to enact specific legislation regarding political parties, it should be ensured that such rights are adequately protected in regulations applicable to general associations. 44. As an integral vehicle for political activity and expression, the formation and functioning of political parties should not be limited, nor dissolution allowed, except in extreme cases as prescribed by law and necessary in a democratic society. Such limits should be interpreted narrowly by domestic courts or authorities, and the state should put in place adequate measures to ensure such rights can be enjoyed in practice. b State’s Duty to Protect Free Association for Political Parties 45. As determined by Article 11 of the echr (and Article 22 of the iccpr), osce states have a duty to protect the right of individuals to associate with, and freely form, political parties. The right to form a political organization is also specifically granted under The Copenhagen Document paragraph 7.6.27 46. The state’s duty to protect free association for political parties extends to cases where a party espouses ideas which are unpopular. Further, paragraph 7.6 of the Copenhagen Document commits states to ensure that all parties, including those which present unpopular ideas, are able to compete with one another on an equal basis in law. As such, states may not deny such parties an equal opportunity to compete in elections or receive legally prescribed funding.28 c Commitment to Non-Violence 47. Parties in democratic systems must reject the use of violence as a political tool and should not advocate or resort to violence, maintain their own militias 27 All osce member states have committed themselves to the tenets of the Copenhagen Document and/or the European Convention on Human Rights, through a process of signature and ratification, as appropriate. Ratification of the European Convention on Human Rights creates a legal obligation upon a state to uphold the articles of this treaty, while the Copenhagen document serves as a political commitment persuasive upon signatory states. 28 The Copenhagen Document, paragraph 7.6 states; “participating states will; respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”

100 Guidelines on Political Party Regulation by OSCE/ODIHR

603

or use hate speech as a political tool. Parties should not seek to disrupt meetings of rival parties, nor should they hinder the free speech rights of those with opposing views. Parties which make a commitment to non-violence in politics have a right to expect the same from others, and to expect that state authorities will protect them if this commitment is not respected. In addition, parties have the right to expect that their supporters will be able to assemble freely, that they will be able to communicate party views in non-violent ways, and that these opinions will not be summarily blocked from receiving proportionate media coverage, especially by the state-run media. The state must ensure there is adequate protection against violence for candidates and supporters of political parties. 48. Freedom of association should be protected even with regards to the relationships between individuals and associations. In a democracy, the right to counter-demonstrate cannot extend to inhibiting the exercise of the right of association.29 As stated by the European Court of Human Rights in the case of Ouranio Toxo et autres c. Grèce, para. 37: “It is incumbent upon public authorities to guarantee the proper functioning of an association or political party, even when they annoy or give offence to persons opposed to the lawful ideas or claims that they are seeking to promote. Their members must be able to hold meetings without having to fear that they will be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community.” d Legality 49. Any restrictions on free association must have their basis in law of the state constitution or parliamentary act, rather than subordinate regulations, and must in turn conform to relevant international instruments. Such restrictions must be clear, easy to understand, and uniformly applicable to ensure that all individuals and parties are able to understand the consequences of breaching them. Restrictions must be necessary in a democratic society, and full pro­ tection of rights must be assumed in all cases lacking specific restriction. To ensure restrictions are not unduly applied, legislation must be carefully constructed to be neither too detailed nor too vague.

29

See Wilson & the National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, echr 2002-V and Plattform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988, Series A no. 139, p. 12, § 32.

604

chapter d

e Proportionality 50. Any limitations on political parties which restrict their right to free association must be constructed to meet the specific aim pursued by authorities. Further, this aim must be objective and necessary in a democratic society. The state has the burden of establishing that limitations promote a general public interest unable to be fulfilled absent the limitation. Regulation of political parties should be implemented with restraint, acknowledging that the allowable limitations to the right of free association for political parties have been narrowly interpreted by the European Court of Human Rights. 51. Any limitation on the formation or regulation of the activities of political parties must be proportionate in nature. Dissolution or refusal of registration should only be applied if no less restrictive means of regulation can be found. Dissolution is the most severe sanction available and should not be considered proportionate except in cases of the most significant violations. In the Parliamentary Assembly of the Council of Europe (pace) Resolution 1308 (2002), the pace stated in paragraph 11 that “a political party should be banned or dissolved only as a last resort” and “in accordance with the procedures which provide all the necessary guarantees to a fair trial.” 52. Paragraph 24 of the osce Copenhagen Document states, regarding proportionality: “The participating States will ensure that the exercise of all the human rights and fundamental freedoms set out above will not be subject to any restrictions except those which are provided by law and are consistent with their obligations under international law, in particular the International Covenant on Civil and Political Rights, and with their international commitments, in particular the Universal Declaration of Human Rights. These restrictions have the character of exceptions. The participating States will ensure that these restrictions are not abused and are not applied in an arbitrary manner, but in such a way that the effective exercise of these rights is ensured. Any restriction on rights and freedoms must, in a democratic society, relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law.” Proportionality should be considered on the basis of a number of factors,30 including: 30

Proportionality is discussed in the case of Case Of Sürek V. Turkey (No. 1) (Application no. 26682/95), where it states that, “In particular, it must determine whether the interference in issue was ‘proportionate to the legitimate aims pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were

100 Guidelines on Political Party Regulation by OSCE/ODIHR

605

– The nature of the right in question – The purpose of the proposed restriction – The nature and extent of the proposed restriction – The relationship (relevancy) between the nature of the restriction and its purpose Whether there are any less restrictive means available for the fulfillment of the stated purpose in light of the facts. f Non-discrimination 53. Freedom of association and freedom of expression, including in the formation and functioning of political parties, are individual rights that must be respected without discrimination. The principle that fundamental human rights are applicable to all within a state’s jurisdiction, free from discrimination, is essential to ensuring the full enjoyment and protection of such rights. Non-discrimination is defined in Articles 2 and 26 of the iccpr and Article 14 of the echr as well as a number of other universal and regional instruments such as cedaw.31 Notably, however Article 14 of the echr defines discrimination to be unlawful only in the enjoyment of any right protected within convention. It is Protocol 12 of the echr which broadens the principle of non-discrimination, developing a fundamental and free standing obligation that: “The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 54. Article 7 of the Council of Europe Framework Convention on National Minorities requires that “[State p]arties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression…” Further, the United Nations Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities states that “[p]ersons belonging to minorities may exercise their rights…individually as well as in community with other

31

in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.” Further, in Case Of Refah Partisi (The Welfare Party) And Others V. Turkey (Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98) the Court states that “The Court considers in that connection that the nature and severity of the interference are also factors to be taken into account when assessing its proportionality.” See the International Convention on the Prevention of all forms of Racial Discrimination, Convention on the elimination of Discrimination against Women, Convention on the Rights of persons with Disabilities, as well as the Copenhagen Document.

606

chapter d

members of their group, without any discrimination” (Article 3(1)). Such instruments fully guarantee the right to form and associate with political parties to all members of minority groups within a country’s jurisdiction. 55. Women are likewise guaranteed equal protection of all rights by a number of international instruments. Article 3 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (cedaw) requires that states take “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.” Further, Article 4 of cedaw makes clear that special measures taken by states to ensure the de facto equality of women “shall not be considered discrimination…but shall in no way entail as a consequence the maintenance of unequal or separate standards.” The Committee of Ministers of the Council of Europe, in Recommendation 2003(3), also calls upon member states to “support, by all appropriate measures, programmes aimed at stimulating a gender balance in political life and public decision making initiated by women’s organisations and all organisations working for gender equality.” The principle of equal participation of women and men in political life was reaffirmed by the Council of Europe’s Committee of Ministers in its Declaration “Making Gender Equality a Reality” (cm(2009)68), where members states are urged to “enable positive action or special measures to be adopted in order to achieve balanced participation, including representation, of women and men in decision-making in all sectors of society, in particular in the labour market and in economic life as well as in political and public decision- making.” Even more recently, in Recommendation 1899(2010), entitled “Increasing women’s representation in politics through the electoral system”, the Committee of Ministers of the Council of Europe encourages the member states to increase women’s representation by introducing quotas. 56. Article 26 of the iccpr has been interpreted to include a requirement for non- discrimination on the basis of sexual orientation on the grounds of “sex”.32 In addition, discrimination on the basis of sexual orientation is prohibited by the European Union Charter of Fundamental Rights (Article 21(2)). In light of this, states should understand that sexual orientation is also a category protected by the principle of non-discrimination. 57. Non-discrimination includes a prohibition of both direct and indirect discrimination, requiring that all persons receive equal protection of the law 32 Nicholas Toonen v. Australia. Communication No. 488/1992, U.N. Doc CCPR/ C/50/D/488/1992 (1994) (United Nations Human Rights Committee, March 31, 2004). §8.7.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

607

(iccpr Article 26). While direct discrimination refers to acts or regulations that clearly foster inequality, indirect discrimination includes acts or laws that, while not discriminatory on their face, lead to unequal treatment or results. Such discrimination is often more pervasive and more difficult to prevent than its direct counterpart. Therefore, in relation to the establishment and activities of political parties, all regulatory decisions must ensure equal treatment and be based upon the same laws and regulations equally applied in all cases. 58. Within the political realm requirements for equality may be interpreted to be absolute (equal) or made on a proportional or “equitable” basis (for instance determined by the number of seats a party holds in parliament). This secondary definition should not be considered discriminatory as long as it is based on objective and reasonable grounds. 59. The potential cumulative effects of discrimination must also be recognized. An individual may at times be impacted by several discriminatory factors. For instance, female ethnic minorities often find themselves doubly disadvantaged with regards to political and social rights. When several discriminatory grounds (such as gender, ethnicity, and age) intersect, they may produce new and unforeseen effects, inadequately addressed through measures aimed at addressing only one such ground. Therefore, legal and regulatory frameworks should give careful attention to the existence of such cumulative effects and potential preventative measures. 60. Similarly, state authorities should treat political parties on an equal basis and as such, remain neutral with regards to the establishment, registering (when applicable), and activities of political parties. Authorities should refrain from any measures which could privilege some political parties and discriminate against others. All political parties should be given opportunities to participate in elections free from distinction or unequal treatment by authorities. g Internal Party Functions 61. Although not required by law, it is recognised as good practice that the internal functions of political parties respect the principles of non-­discrimination and equality.33 Such principles may include measures to ensure party qualifications for membership, candidacy, and party activities that provide for the equal participation of women and minorities. While not legally mandated, such steps are seen as good practice given that both women and minorities have been subject to historical inequalities in the osce region and globally, which requires redress. 33

See paragraph 8 for examples of such treaties.

608

chapter d

62. The internal functions of political parties should generally be free from state interference. Internal political party functions are best regulated through the party constitutions or voluntary codes of conduct elaborated and agreed to by the parties themselves. 5 Regulation of Political Parties a Legitimate Means of Regulating Political Parties 63. Any limitations on the exercise of free association and expression through the activities and formation of political parties must be consistent with relevant provisions in the international and regional instruments, including the iccpr and echr. The set of legitimate grounds under which freedom of association may be limited are restricted to: “…such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”34 64. Further, the European Court of Human Rights has consistently ruled that, due to their important role in the functioning of democracy, limitations on the formation of political parties should be used with extreme restraint and only when necessary in a democratic society. Given the requirements of proportionality, it must further be proved that any limitation is the least restrictive way of achieving a legitimate regulatory aim. Some osce states do not prescribe any requirements for political party registration or regulation of party activities. However, given administrative necessities related to the functioning of democracy, it is fully justified for a state to enact regulations (often only procedural in nature) for political party registration and formation. b Political Party Registration 65. There are states in the osce region that do not require the registration of political parties. The proper functioning of democracy in many such states illustrates that requirements for registration are not necessary for a democratic society.35 However, the European Court of Human Rights has consistently 34

35

The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (adopted 4 November 1950, entered into force 3 September 1953, amended by Protocol No 11, European Treaty Series No 155, entered into force on 1 November 1998, which replaced Protocols 2,3,4,5,8,9,10 and repealed Articles 25 and 46 of the Convention) (echr). Article 11(2). Prohibition of Political Parties and Analogous Measures – Report, Adopted by the Venice Commission at its 35th Plenary Session. (Venice, 12–13 June 1998).

100 Guidelines on Political Party Regulation by OSCE/ODIHR

609

ruled that requirements for registration do not, in themselves, represent a violation of the right to free association. As political parties may obtain certain legal privileges, based on their legal status, that are not available to other associations, it is reasonable to require the registration of political parties with a state authority. 66. While registration as a political party is required, substantive registration requirements and procedural steps for registration should be reasonable. Where such registration requirements exist, they should be carefully drafted to achieve legitimate aims necessary in a democratic society. 67. A case study of different registration requirements of osce participating states previously conducted by the Venice Commission illustrates the points above, indicating that: “There are no registration requirements in Germany, Greece or Switzerland… In Denmark and The Netherlands, political parties are not obliged to register, but certain formalities are required in order for them to participate in elections. In Ireland, registration simply enables a party to post its name alongside those of its candidates, while in Sweden it protects the party’s exclusive right to use the name. In some states where political parties are required to register this is merely a formality, as in Austria, Spain, Uruguay or Norway, where the only condition is to produce 5000 signatures. In other countries, however, the authorities make sure that the party fulfils the material requisites applicable to political party activities (this is the case, for example, in the Czech Republic, Latvia, Poland and Russia).”36 68. Grounds for rejection of party registration must be clearly stated in law and based on objective criteria. Where parties can be denied registration for administrative reasons, such failure to meet a deadline, such administrative requirements must be reasonable and well known to parties. Clearly established deadlines and procedures for registration are necessary to minimize the negative impact of denials of party registration for purely administrative reasons. Further, where existing registration requirements are changed, such changes should not result in the revocation of the registration status of a political party. Parties registered under previous registration legislation should be able to maintain their status as political parties and given a reasonable opportunity to supplement their registration documents.

36

CDL-INF(2000)1 – Guidelines On Prohibition And Dissolution Of Political Parties And Analogous Measures.

610

chapter d

69. Deadlines for deciding registration applications should be reasonably short to ensure realisation of the right of individuals to associate. Expeditious decisions on registration applications are particular important for new parties seeking to present candidates in elections. Deadlines which are overly long constitute unreasonable barriers to party registration and participation. 70. It is reasonable that legislation regarding political party registration require that the state be provided with basic information regarding the political party. For example, such regulations may require a statement of the party’s permanent address and the registration of party names and symbols to limit possible confusion on the part of voters and citizens. Some states prohibit the use of names and symbols associated with national or religious institutions. These types of registration requirements are reasonable. Regulation of party names and symbols to avoid confusion is also important for the state to be able to ensure a duly informed electorate able to exercise their free choice. 71. In many states the registration of political parties presents a number of advantages to parties. For example, registration may be required to receive state funding, ensure provision of public airtime, or for access to the ballot during elections. Registration may also be required for the acquisition of legal identity on the part of a party, which may be a requirement in some states to open bank accounts or hold property. An additional advantage of such registration may be the protection provided for party names and logos. Advantages given to registered parties are not discriminatory as long as there is equal opportunity to register as a political party. 72. Some states require political parties to publicly file a party constitution upon registration. While such a requirement is not inherently illegitimate, states must ensure that this requirement is not used to unfairly disadvantage or discriminate against any political party. Such a requirement cannot be used to discriminate against the formation of parties which espouse unpopular ideas. In Refah Partisi (The Welfare Party) and Others v. Turkey, the European Court of Human Rights found Article 10 of the echr protects “not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” Thus, a party’s application for registration should not be denied on the basis of a party constitution that espouses ideas which are unpopular or offensive. 73. It is a legitimate requirement that political parties provide basic information with their application for registration defining their organizational structure. This is necessary given the need for responsible persons to be identified within the party for the receipt of communications from the state and for the operational oversight of certain activities such as elections.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

611

c Registration Fees 74. The payment of reasonable registration fees for the establishment of a political party is an acceptable requirement. However, registration fees should not be enacted to restrict party formation. For instance, in many states where registration is only a formality and does not provide distinct privileges or require the provision of state resources to a political party, the imposition of registration fees may appear unnecessary. 75. Registration fees should never be of such an amount as to prevent the registration of legitimate parties. Registration fees which are excessive may be deemed discriminatory as they limit the right of citizens without adequate resources to associate and stand for election as protected under human rights instruments. As with other regulations on political parties, registration fees must be applied objectively to all parties. States should also provide for nonmonetary methods for registration, such as expression of minimum support through the collection of signatures. Alternative non-monetary methods should be available as registration should be determined based on a minimum level of support as opposed to financial status. d Minimum Support 76. Many osce states require proof of minimum levels of support, on the basis of the collection of signatures, prior to registering as a political party. Minimum requirements vary greatly among states, but are usually determined as a percentage of the population.37 Although limitations based on minimum support established through the collection of signatures are legitimate, the state must ensure they are not overly burdensome as to restrict the political activities of small parties or to discriminate against parties representing minorities. Given variances in the size and nature of states throughout the osce region, it is generally best that the minimum number to establish support be determined, at least at the local and regional level, not as an absolute number but rather a reasonable percentage of the total voting population within a particular constituency. Some states provide a lower numerical requirement for a political party formed by a parliamentarian, as their obtainment of elected office may serve as an inference of support. Minimum support for a party may be established either through active party membership or through an expression of support such as the collection of signatures. Legislation should clearly state the means by which support must be evidenced.

37

2008 figures accessed at from the World Bank – World Development Indicators placed the population of Molodova at 3,633,369 people, while Latvia had a population of 2,266,094.

612

chapter d

77. Where the collection of signatures is required to illustrate a minimum level of citizen support, parties must be allowed clear deadlines and a reasonable amount of time for the collection of such signatures, as well as an opportunity to submit additional signatures if necessary. While lists of signatures can be checked for verification purposes, this practice can be abused and as such should be carefully regulated, including concerning the publication of lists and who has standing to present challenges to them. If verification is deemed necessary, the law should clearly state the process for such verification and ensure it is fairly and equally applied to all parties. In order to enhance pluralism and freedom of association, legislation should not limit a citizen to signing a supporting list of only one party. Such a limitation is too easily abused and can lead to the disqualification of parties who in good faith believed they had fulfilled the requirements for registration. 78. Minimum levels of support may also be established on the basis of party membership, as opposed to the collection of signatures. However, when party membership is the criterion upon which support is based, it is even more critical that the minimum number of required members to establish a party is reasonable and not overly burdensome. Verification of party signature support lists maybe necessary to determine their accuracy, but should be designed to ensure the equality and fairness in application. 79. The Council of Europe’s Venice Commission has emphasized the need for striking a balance in the regulation of the collection and verification of signatures to establish a sufficient level of minimum support.38 The privacy of supporters should be taken into consideration and balanced against the need to verify the accuracy of the support signatures. e Geographic Location 80. Provisions regarding the limitation of political parties which represent a geographic area should generally be removed from relevant legislation. Requirements barring contestation for parties with only regional support potentially discriminate against parties that enjoy a strong public following but whose support is limited to a particular area of the country. Such provisions may also have discriminatory adverse effects on small parties and parties representing national minorities. 81. A requirement for geographic distribution of party members can also potentially represent a severe restriction of political participation at the local and regional levels incompatible with the right to free association. As such, geographic considerations should not be a requirement for political party for38

CDL-AD (2002) 23 rev – Code of Good Practice in Electoral Matters.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

613

mation. Nor should a political party based on a regional or local level be prohibited. f Regulation of Inter-State Parties 82. Limitations on the interaction and functioning of political parties at an inter-state level are unjustifiable and should be avoided in all relevant legislation. The Copenhagen Document clearly espouses a requirement that associations, including political parties, be able communicate freely and cooperate with similar associations at the international level, including as appropriate through the provision of financial assistance.39 This open communication and relationship between parties at an inter-state level is further supported by the Council of Europe – Venice Commission, which states that: “The practice of international co-operation among parties sharing the same ideology is a widespread one. Some parties have projected further their international dimension by assisting sister parties in third countries. In the past, these practices assisted, for instance, the democratic consolidation in a number of European countries. Whenever this assistance is compatible with national legislation and in line with echr principles and European standards, it must be welcomed as a good practice, since it contributes to creating solid democratic party systems.”40 83. Therefore, legislation which precludes free interaction between international branches of political parties is contrary to good practice and obligations to protect the right to free association. Therefore, political parties should be free to enjoy communication with others who share their ideals at the national and international level. g Regulatory Measures to Ensure Non-discrimination 84. Legislation can regulate, through the establishment of enticements, political parties to ensure the full participation and representation of women and minorities in the political process. For instance, a state may allow lower levels of citizen 39

40

Copenhagen Paragraph 10.4 states that States should commit to “allow members of such groups and organizations to have unhindered access to and communication with similar bodies within and outside their countries and with international organizations, to engage in exchanges, contacts and co-operation with such groups and organizations and to solicit, receive and utilize for the purpose of promoting and protecting human rights and fundamental freedoms voluntary financial contributions from national and international sources as provided for by law.” CDL-AD(2009)021 – Code of Good Practice in the Field of Political Parties and Explanatory Report, adopted by the Venice Commission at its 77–78th Plenary Session. (Venice, 13–14 March 2009).

614

chapter d

support for parties of national minorities. Such measures are not to be considered discriminatory as they are compatible with international and regional instruments allowing for special measures to be taken to ensure de facto equality and support the full participation of women and minorities in public life.41 85. A number of countries have introduced electoral gender quotas in recent years, and in many more countries political parties apply voluntary gender quotas. For instance, as noted in the Venice Commission Report on the Impact of Electoral Systems on Women’s Representation in Politics, CDL-AD(2009)029, ten Council of Europe member states (that are also participating States of the osce) have introduced mandatory, legal quotas for national parliaments (Belgium, Bosnia and Herzegovina, France, Armenia, the Former Yugoslav Republic of Macedonia, Serbia, Portugal, Slovenia, Spain and Albania). These quotas differ considerably with regard to the minimum percentage of each sex required among the candidatures, ranging from 15% to 50% minimum required of both sexes. A few countries also provide for ranking order on the list. For instance, in Serbia every fourth position must be filled with the under-represented sex; in Bosnia and Herzegovina there must be one candidate of the under-represented sex among the first two positions on the list, two candidates among the first five, and three among the first eight; and in Belgium, the top two positions must not be filled by candidates of the same sex. In about 30 Council of Europe member states, one or more political parties have adopted voluntary quotas in order to guarantee the nomination of a certain proportion of women.42 h Requirements for Retention of Party Registration 86. Once party registration is approved, requirements for retaining registration should be minimal. However, requirements for continuing to receive certain benefits from the state, such as public financing or ballot access in elections, may be higher than the requirements for maintaining registration status as a political party. Loss of registration status, as opposed to the loss of state benefits, due to failure to submit financial forms or other required reports or forms should be limited to cases of serious legal violations and according to clearly defined procedures. Where legislation provides for the loss of registration status, it should also state clear procedures on the ability and requirements for parties to re-register. 41

42

Convention on the Elimination of All Forms of Discrimination against Women, Articles 3–4, Council of Europe Framework Convention on National Minorities, Article 4(2) (Nicholas Toonen v. Australia 2004). See also document CDL-AD (2009)029 Report on the Impact of Electoral Systems on Women’s Representation in Politics adopted by the Council for Democratic Elections at its 28th meeting (Venice, 14 March 2009) and the Venice Commission at its 79th plenary session (Venice, 12–13 June 2009), para 89.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

615

87. It is good practice that states also provide an avenue by which political parties may make minor changes to their registration information, such as the primary office address or name of official contact, only through a process of notification rather than requiring re-registration. 88. In some states, a political party that does not meet a minimum results threshold in an election loses its status as a registered political party. This practice is far from ideal and should not be included in relevant legislation. If a party originally met all requirements for registration, then it should be able to continue party activities outside of elections. At a very minimum, rather than losing their rights as a formal association, parties which did not receive adequate support in an election should be able to continue their association under the laws governing general associations. Such parties may validly be excluded from benefits associated with being an active political party (i.e. state subsidies) but should not lose the basic rights (i.e. freedom of assembly and association) awarded to all public associations. 6 Prohibition or Dissolution of Political Parties a Legality 89. Prohibition or dissolution of a political party is a more serious interference than de- registration (loss of registered status). Prohibition or dissolution is a complete ban on the party’s existence. In the Parliamentary Assembly of the Council of Europe (pace) Resolution 1308(2002) on Restrictions on political parties in the Council of Europe’s member states, the pace stated in paragraph 11 that “restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country.” Thus, opportunity for a state to dissolve or prohibit a political party from forming should be exceptionally narrowly tailored and applied only in extreme cases. Such a high level of protection has been deemed appropriate by the European Court of Human Rights given political parties’ fundamental role in the democratic process.43 Such protections are granted in the light of parties’ critical role in a democratic society. 90. Universal and regional human rights instruments recognize valid reasons for restrictions to be placed on the freedom of association, including those of public order, public safety, protection of health and morals44 of the society, 43 44

Case of the United Communist Party of Turkey and Others v. Turkey. (133/1996/752/951) (European Court of Human Rights, January 30, 1998). The concept of “morals” has the potential to be applied in an overly restrictive manner, particular with the regards to sexual orientation which was historically considered by some as immoral. However, distinctions made on the basis of sexual orientation are

616

chapter d

national security (including measures intended to counter terrorism and extremism)45 and the protection of the rights and freedoms of others. In all cases, such measures must be objective and necessary in a democratic society. However, the prohibition or dissolution of political parties is the most severe of available restrictions on political parties and is only applicable when all less restrictive measures have been deemed inadequate. b Proportionality 91. Strict considerations of proportionality must be applied in determining if prohibition or dissolution of a party is justified. As the pace has noted, “as far as possible, less radical measures than dissolution should be used.”46 Thus, the proportionality principle applies and it must be shown by the state that no lesser restrictive means would suffice. c Restrictions on Prohibition or Dissolution 92. As noted above, the possibility to dissolve or prohibit a political party from forming should be exceptionally narrowly tailored and applied only in extreme cases. Political parties should never be dissolved for minor administrative or operational breaches of conduct. Lesser sanctions must be applied in such cases. Nor should a political party be prohibited or dissolved because its ideas are unfavorable, unpopular, or offensive. If the party concerned does not use violence and does not threaten civil peace nor the democratic constitutional order of the country, then prohibition or dissolution are not justified.47

45

46

47

clearly discriminator (See the Charter on the Fundamental Rights of the European Union, and European Court of Human Rights cases including Salgueiro da Silva Mouta v. Portugal, and Case of E.B vs. France). The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (adopted 4 November 1950, entered into force 3 September 1953, amended by Protocol No 11, European Treaty Series No 155, entered into force on 1 November 1998, which replaced Protocols 2,3,4,5,8,9,10 and repealed Articles 25 and 46 of the Convention) (echr). Article 11(2); International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969), Article 22(2). Parliamentary Assembly of the Council of Europe (pace) Resolution 1308(2002) on Restrictions on political parties in the Council of Europe’s member states, the pace, paragraph 11. See Batasuna v. Spain (ECtHR, judgment of 30-06-2009).

100 Guidelines on Political Party Regulation by OSCE/ODIHR

617

93. The fact alone that a party advocates a peaceful change of the constitutional order is not sufficient to justify its prohibition or dissolution. Political parties must be able to promote a change in the law or the legal or constitutional structures of the State, provided that the means used for this promotion are legal and compatible with fundamental democratic principles. 94. Dissolution of political parties based on the activities of party members as individuals is incompatible with the protections awarded to parties as associations. This incompatibility extends to the individual actions of party leadership, except cases in which they can be proven to act as a representative of the party as a whole. For dissolution to be applicable it must be shown that it was the party’s statutory body (not individual members) who undertook objectives and activities requiring such dissolution.48 A party cannot be held responsible for the action taken by its members if such action is contrary to the party constitution or party activities.49 95. Actions undertaken by particular individuals within a party membership, when not officially representing the party, should be attributed to the individual only. In such cases, appropriate civil and criminal sanctions may be enacted against the individual. 96. The Venice Commission has found, upon completing a survey of national legislation relating to the regulation of political parties, that where allowed at all, prohibition and dissolution are applicable only in extreme cases including the following: threat to the existence and/or sovereignty of the state, threat to the basic democratic order, violence which threatens the territorial integrity of the state, inciting of ethnic, social, or religious hatred, and the use or threat of violence.50 Even where such reasons for prohibition or dissolution are listed in legislation it is important to note that prohibition must meet the strict standards for legality and proportionality discussed above in order to be justified.

48

49

50

CDL-INF(2000)001 Guidelines on prohibition and dissolution of political parties and analogous measures adopted by the Venice Commission at its 41st plenary session (Venice, 10–11 December, 1999), paragraph 51. CDL-INF(2000)001 Guidelines on prohibition and dissolution of political parties and analogous measures adopted by the Venice Commission at its 41st plenary session (Venice, 10–11 December, 1999), paragraph 51. CDL-AD(2009)006 – Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey, Adopted by the Venice Commission at its 78th Plenary Session. (Venice, 13–14th March 2009).

618

chapter d

IX Internal Functioning of Political Parties 1 Internal Party Democracy 97. Due to the important role that parties play as actors in a democracy, some OSCE states have legislated requirements that certain internal party functions be democratic in nature. The basis and applicability of such legislation must be carefully considered. Regulation of internal party functions, where applied, must be narrowly constructed as to not unduly interfere with the right of parties as free associations to manage their own internal affairs. 98. However, as parties contribute to the expression of political opinion and are instruments for the presentation of candidates in elections, some regulation of internal party activities can be considered necessary to ensure the proper functioning of a democratic society.51 The most commonly accepted regulations are limited to requirements for parties to be transparent concerning their decision making and to seek input from membership when determining party constitutions and candidates. a Gender Equality 99. The small number of women in politics remains a critical issue which undermines the full functioning of democratic processes. In many states women still represent a single-digit minority in parliament and the European average is only 18%.52 Specific measures to ensure women have an adequate opportunity to compete in elections (see section III) and be represented in elected bodies should be considered for internal party rules. This would be consistent with Recommendation 1899(2010), entitled “Increasing women’s representation in politics through the electoral system”, in which the Committee of Ministers of the Council of Europe encourages the member states to increase women’s representation by introducing quotas. 100. The creation of a specific “women’s section” or “gender division” of a party is sometimes used as a tool to promote greater gender equality. Such sections or divisions can make great strides in ensuring women’s participation by allowing women an opportunity to discuss issues of common concern as well as a forum for expertise building activities. While the osce/odihr has recognized  that these bodies can at times work against the interest of women by marginalizing or sidelining women within the party, their creation should generally be considered 51 52

CDL-DEM(2003)002rev,3.5 – Cf. Replies to the Questionnaire on the Establishment, Organisation and Activities or Political Parties. See the Council of Europe publication Parity Democracy – a far cry from reality (CDEG (2009) 17 prov) for detailed statistics on gender representation for Council of Europe States.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

619

a positive measure to ensure women’s equal participation and gender knowledge.53 101. In respect for the universal and regional instruments designed to ensure equality for women as well as general principles for non-discrimination, legislation should endeavor to ensure that women are able to participate fully in political parties as a fundamental means for the full enjoyment of their political rights. In accordance with cedaw Article 4, special measures should be taken, which might include provisions such as the adoption of quotas for representation, requirements for gender-balance on boards tasked with selecting candidates, introduction of gender neutral selection criteria, or specialized training programs. Voluntary quotas which are not legally mandated but included in party constitutions have also proven effective to ensure the representation of women. 102. According to the Venice Commission and the Committee of Ministers of the Council of Europe, electoral gender quotas can be considered an appropriate and legitimate measure to increase women’s parliamentary representation. In the Committee of Minister’s 2009 Declaration “Making Gender Equality a Reality”, member states are urged to enable positive action or special measures to be adopted in order to achieve balanced representation in political and public decision-making. Similarly, in accordance with osce Decision No. 7/09 on Women’s Participation in Political and Public Life, the Ministerial Council calls on the participating States to “consider possible legislative measures, which would facilitate a more balanced participation of women and men in political and public life and especially in decision-making”, and to “encourage all political actors to promote equal participation of women and men in political parties, with a view to achieving better gender-balance representation in elected public offices at all levels of decision-making.” All such steps are considered good practice. 103. Where applicable, special measures may also include training and capacity building programs developed for female candidates prior to their selection to ensure they have an equal opportunity to serve as candidates and to be elected. These training programs may include a system of mentoring for inexperienced new members (including women and minorities) as well as gendersensitive training courses for new members to promote non-discriminatory working relations and respect for diversity in work and management style.54 53 54

osce/odihr. “Handbook for Monitoring Women’s Participation in Elections.” Published by the osce Office for Democratic Institutions and Human Rights, Warsaw, Poland; 2004. Beijing Declaration and Platform for Action (adopted 15 September 1995, Fourth World Conference on Women).

620

chapter d

Similar programs and specific measures to ensure minority participation should also be enacted. Legislation may require such trainings as a measure to ensure de facto equality for women and to minimize the effect of historical inequalities in the political life.55 104. Special measures for women may also include the adoption, implementation and evaluation of gender equality strategies, plans and programmes at different levels, including specific actions plans to achieve balanced participation and representation of women and men both in internal political party offices. Moreover, the establishment of target groups, time frames and benchmarks for the effective implementation of gender equality plans, including specific action plans, may also be included. 105. The participation of women in political party activities can be enhanced by recognizing and considering the family responsibilities of party members. Family responsibilities may be a deterrent for some members to participate in party activities. Efforts to avoid party meetings that conflict with members’ family responsibilities and the provision of child care facilities may facilitate participation in party activities. b Role of Minorities 106. In accordance with Article 4(2) and Article 15 of the Framework Convention on the Protection of National Minorities, legislation may require state authorities to fulfill an obligation to allow for the full and equal participation of minorities in political life. As a good practice, political parties should voluntarily endeavor to ensure the presentation of issues relevant to national minorities in party programs. 107. The adoption of specific initiatives aimed at the promotion of minority participation is crucial to ensuring that requirements for equal representation of minorities are more than theoretical. Internal party measures designed to foster the representation of minorities may serve as the basis for receipt of particular legislative incentives, which would be consistent with the Council of Europe Framework Convention for the Protection of National Minorities. 108. Political parties may consider taking a variety of measures to support minority participation, including the creation of advisory committees on minority issues, training and recruitment programs focused on national minorities, and provisions requiring minority membership on internal party

55

See, for example Council of Europe Committee of Ministers recommendation 2003/3 on balanced participation of women and men in political and public decision making adopted on 12 March 2003 and explanatory memorandum, principles A.8, B.20 and B.22.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

621

committees and candidates’ lists. All such steps are considered good practice.56 X Party Structure and Activities 1 Internal Party Rules 109. Legislation regarding political parties does not necessarily have to include the requirement for creation or publication of party constitutions. However, such constitutions are legally required in some osce states and can be an important step in ensuring a party’s commitment to equality and non-­ discrimination. Party constitutions in some osce states include voluntary quotas to ensure equal opportunity for women. The adoption of voluntary quotas is an exemplary effort on the part of such parties and should be viewed positively. 110. Party constitutions can also be important to ensure party membership is informed of their rights and responsibilities. As such, party constitutions should be approved through a participatory process, such as party congresses, rather than by a party leader individually, and made widely available to party membership. 111. Party constitutions generally define the rights and duties of political party members, party organization, and procedures for the making of decisions. Party constitutions may also (where applicable) define the responsibilities of parties at the local, regional, and national levels, as well as the relationship between these different bodies. 112. Party constitutions ideally should provide members who believe that the party’s constitution has been violated with internal avenues of redress. When the law allows access to civil courts, this should only be allowed after internal avenues of redress have been exhausted. 2 Choosing Party Leadership and Candidates 113. Parties must have the ability to determine party officers and candidates, free from government interference. Recognizing that candidate selection and determination of ranking order on electoral lists is often dominated by closed entities and old networks of established politicians, clear and transparent criteria for candidate selection is needed, in order for new members (including

56

See also the following documents of the Venice Commission: Participation of minorities in public life (“Science and technique of democracy” series, N° 45); Dual voting for persons belonging to national minorities (CDL-AD (2008) 013) and Preferential treatment of kin-minorities by their kin-state (CDL-INF (2001) 019).

622

chapter d

women, and minorities) to get access to decision-making positions. Genderbalanced composition of selecting bodies should also be commended. 3 Regulation of the Right to Associate with Political Parties a Voluntary Nature of Association 114. It is vital to note that association within political parties must be voluntary in nature. As indicated by the definition of political parties provided in this text and as enshrined in the Universal Declaration of Human Rights (Article 20), all citizens must be free to belong to or abstain from associations as is their preference. Membership should be an expression of an individual’s free choice to utilize the collective means of a political party for the full enjoyment of their individual right to expression and opinion. Legislation should explicitly mandate that no person may be obliged against their free choice to associate with a political party. 115. Members of political parties must also be able to cancel their membership at any time. Cancellation of membership is a key element of the voluntary nature of association and should occur without fine or penalty. In particular, in the case of party mergers, splinters, or the expression of new platforms, party members should be allowed freedom to continue or cease their membership activity as they see fit. 116. Individuals are not guaranteed membership in any association based on a common belief to which they do not subscribe.57 It is justifiable for parties to withhold membership from any applicant who rejects the values they uphold, or who acts against the values and ideas of the party. Such restrictions of membership should ideally, however, be carefully constructed as to not be discriminatory in nature, striking a careful balance between the need for political associations to be based on collective beliefs and principles of non-discrimination. In fact, many parties in the osce region have included in their party constitutions notice that membership is open to all persons in agreement with the party’s fundamental values irrespective of other conditions.58 Such party 57

58

The Court has established the right of general associations to deny membership of persons who do not agree with the association’s fundamental beliefs. See Associated Society of Locomotive Engineers and Firemen v. the United Kingdom. (European Court of Human Rights, 2007) (Application No. 11002/05). CDL-AD(2009)021 – Code of Good Practice in the Field of Political Parties and Explanatory Report, adopted by the Venice Commission at its 77–78th Plenary Session. (Venice, 13–14 March 2009). See for example party constitutions of the Austrian, Swedish and German Social Democratic Party, the Liberal Democrats in the United Kingdom, and the United Left Party in Spain.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

623

constitutions are exemplary in ensuring party membership is inclusive and non-discriminatory. b Reasonable State Restriction on Free Association for Public Officials 117. Article 11.2 of the echr allows restrictions to be placed by states on the free association of three categories of persons: police and armed forces. Further, the European Court of Human Rights has recognized Article 11.2 to justify restrictions on the political activities of such categories of persons to ensure their impartiality and the proper functioning of their non-partisan public offices. Therefore, the partisan political participation and party ­membership of public officials may be regulated or denied in order to ensure that such persons are able to fulfill their public functions free from a conflict of interest. 118. Restrictions on the free political association of public officials have been deemed legitimate and necessary in a democratic society as a means of ensuring the rights and freedoms of others, in particular the right to representative governance. In Ahmed v. United Kingdom59 the European Court of Human Rights found that no violation occurred when the United Kingdom restricted certain classes of public office holders from engaging in political activities which may imply partiality. The 1939 Hatch Act in the United States is another example of such a legitimate restriction. The Act states that; “no officer or employee in the executive branch of the Federal government, or in any agency or department thereof, shall take any active part in political management or in political campaigns.” Although generally legitimate, however, such restrictions may be considered an undue infringement if they are applied in an overly broad manner, such as to all persons in government service.60 c Unreasonable State Restrictions on Free Association 119. Membership in multiple political parties at the same time has historically been discouraged. Free association is a fundamental right which should not be limited by requirements to only associate with a single organisation. Laws which limit party membership (rather than candidacy) to only one political party, must show compelling reasons for doing so. Legislation which limits a person to membership in only one political party should be assessed carefully 59 60

Ahmed and Others v. The United Kingdom (1998) (65/1997/849/1056). See, for example the case of Vogt vs. Germany (application No. 17851/91) in which the court found that the dismissal of a public teacher on the basis of her membership in a political party was an infringement on Articles 10 and 11 of the echr.

624

chapter d

and only maintained if compatible with the echr. In particular, in states with sub- national party structures that allow parties to compete at only the regional or local level, the ability to support multiple parties is fundamental to the free expression of a voter’s will. d Foreign Nationals or Aliens 120. International obligations recognise nationality and citizenship as a reasonable restriction on the rights of political participation (see for example echr Article 16). However, human rights instruments applicable in the osce region provide foreign nationals and stateless persons with the same general protection of rights as they do citizens. Further, in the particular context of elections, in 1997 the European Convention on the Participation of Foreigners in Public Life at the Local Level61 entered into force, and there is a growing trend within many European countries to allow foreign residents to vote and stand in local elections. XI Parties in Elections 1 Role of Candidates and Parties a Electoral Systems 121. osce states show great variety in the choice of electoral and party systems.62 Such choices often depend on the historical and cultural development of specific states. Any guidelines for political party legislation must be cognizant of this variety and understand that it precludes any blanket solutions or regulations to be enacted. 122. A country’s choice of electoral system should be respected as long as it upholds a minimum standard for democratic elections. As countries enjoy wide latitude in the development of an electoral system, guidelines for legislation regarding political parties must recognize the impact that different electoral systems have on political parties. The variety of ways in which political parties are affected by different electoral systems requires careful consideration of a state’s political development and system of governance when developing legislation relating to political parties.

61 62

Council of Europe Convention on the Participation of Foreigners in Public Life at the Local Level (entered into force May 1, 1997), 5.II.1992, CETS-No. 144. osce Ministerial Decision No 5/03 on Elections, in which osce participating States acknowledge that “democratic elections can be conducted under a variety of different electoral systems and laws.”

100 Guidelines on Political Party Regulation by OSCE/ODIHR

625

b Political Pluralism 123. Political pluralism is critical to ensure the effectiveness of democratic governance and provide citizens with a real say in their choice of governance. Legislation regarding political parties should promote pluralism as a means of guaranteeing the ability for an expression of opposition viewpoints and democratic transitions of power. 124. Generally, measures to limit the number of political parties able to contest in an election are not considered as incompatible and could be seen as reasonable for administration of elections and to prevent fragmentation. However, legislation should avoid restricting the number of parties through overly burdensome requirements for registration or expressions of minimum support. Not only do such restrictions inherently minimize the free functioning of political pluralism in society, they can easily be manipulated to silence parties or candidates who express opinions unpopular to those in power. 125. As another measure to ensure pluralism, the legal framework must provide for equal treatment for all political parties and candidates, including women and minority groups. This includes protection of their right to present candidates as well as their eligibility to receive political financing and public support. c Partisan Candidates 126. A major function of political parties is the presentation of candidates for elections in an effort to gain and exercise political authority. Candidates are chosen by the party as a representative of party ideals. However, candidacy is an expression of an individual’s right to be elected and as such the legal regulations on candidates must ensure a citizen’s individual right to be a candidate in elections. 127. The individual right to stand for elections may be affected by three sets of rules, those imposed by the state for registration as a candidate, those imposed internally by the party itself for selecting candidates and admissible restrictions such as age, residency or citizenship requirements. While the first set of rules must not unduly limit the right of free expression and association for parties, it is good practice (although not required by law) that the second set also respect the need to ensure candidates are chosen with the support of the party at large. Internal party rules for the selection of candidates should not be subject to regulation by the state except for ensuring that selection is consistent with the political party’s constitution. 128. Political parties during elections often provide support, funding and campaign resources for their chosen candidates. Legislation regulating party activities must allow for the free exercise of such support. While funding and

626

chapter d

campaign contributions can be regulated by the state, such regulations must respect the fundamental right enjoyed by individuals in a party to participate in political life, including through offering support to a candidate of their choice. 129. In closed-list electoral systems, parties are able to assign or define the order of their candidates on an electoral list. This is acceptable, but parties should on the contrary be prohibited from changing the order of candidates within an electoral list after voting has commenced. d Non-partisan (Independent) Candidates 130. The right of individual candidates to run for office free from political party association is specifically protected by the Copenhagen Document which guarantees the “right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without dis­ crimination.”63 While parties are seen as central actors in elections, their role cannot be at the exclusion or undermining of an individual’s right to stand for office. As such, current legislation in the osce region which bans the candidacy of independent candidates should be revised, and legislation regarding political parties in elections should include specific mention of the rights of independent candidates to run for election as well. Regulations for parties regarding ballot access, fees, and candidacy restrictions should be the same for independent candidates. These ballot access rules and fees however, cannot be at a level which is unachievable for independent candidates compared with parties. Where registered political parties are provided state support, such as the provision of public airtime, there should be a system of support for independent candidates to ensure they are awarded equitable treatment in the allocation of state resources. e Gender Equality in the Selection of Candidates 131. Legislation on political parties should ensure that women and men have an equal chance to be candidates and to be elected. In addition to the measures discussed earlier to ensure equality in candidacy (voluntary party quotas, gender balanced selection committees, and training for female candidates as well as gender equality action plans and clear and transparent rules for candidate selection), parties must respect all other measures enacted by the state to

63

Copenhagen Document – Second Conference on the Human Dimension of the csce (Copenhagen, 5 June- 29 July 1990), Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce (Copenhagen Document), paragraph 7.5.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

627

ensure gender equality in elections, including provisions regarding gender equality in candidacy and party lists. 132. Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) makes clear that “[a]doption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination…” As such, and in light of the historical inequalities suffered by women throughout the osce region and globally, states may legislate particular requirements or impose other measures aimed at ensuring women’s equal participation in political life and as candidates. 133. Quotas are one such measure that may be adopted by states. In Recommendation 1899(2010), entitled “Increasing women’s representation in politics through the electoral system,” the Parliamentary Assembly encourages the member states of the Council of Europe to increase women’s representation by introducing quotas. Countries with a proportional representation list system are encouraged to (consider) introduce a mandatory quota which provides not only for a high proportion of female candidates (ideally at least 40%), but also for a strict rank order rule, for example, a “zipper” system of alternating male/female candidates or that every group of three candidates on the list (1–3, 4–6, 7–9, et sec) consists of at least one candidate of the less represented sex. With rank order rules, such as these, women candidates do not risk being placed too low on the list to have a real chance to be elected. Countries with majority or plurality systems are encouraged to introduce the principle of each party choosing a candidate amongst at least one female and one male nominee in each party district or find other ways of ensuring increased representation of women in politics. 134. Where quotas are mandated, concerns exist that these quotas will in essence create a ceiling to gender advancement by requiring parties to retain women in low-level seats to ensure compliance. It is important to ensure such quotas effectively allow women the ability to progress to positions of leadership rather than creating de facto restrictions on their progression. It is a good practice to periodically review quotas to assess whether they should be maintained at the same level or whether their number should be increased, particularly at low-levels of governance. 135. Being placed on an electoral list as a candidate is no guarantee of women’s representation. Pervasive cultural and historical factors create inequalities which are not easily combated by quotas and list requirements alone. For instance, domestic responsibilities are usually identified as the most important deterrent for women to enter politics. Party meetings at inconvenient times, as well as a lack of child care facilities, deter many candidates with

628

chapter d

family responsibilities. Moreover, women often receive less support and funding from their parties throughout the campaign period, or are even expected to give up their mandates to male counterparts after the election. States should take necessary measures to ensure such practices are prevented, as well as enacting positive measures to help promote the candidacy of women. 136. There should be a variety of sanctions available when parties do not comply with legal measures aimed to ensure gender equality. Sanctions may range from financial sanctions, such as the denial or reduction of public funding, to stronger legal sanctions, such as removal of the party’s electoral list from the ballot. In all cases, sanctions should be proportionate to the nature of the violation. f Minority Candidates 137. The ability for national minorities to be elected is likewise an important area for possible regulation. In accordance with the Framework Convention on National Minorities, states should ensure the free exercise of all political rights to national minorities. Within the electoral process measures should therefore be taken to ensure national minorities have an equal opportunity to be elected and represented in parliament.64 138. Measures to aid in minority representation often include practices such as the reservation of a set number of parliamentary seats for specific minorities, or the practice of waiving the minimum votes threshold for representation in parliament in the cases of parties representing national minorities. Where applicable, such measures should be adopted into legislation by states to help ensure minorities are able to be elected on an equal basis with other candidates. g Regulations on Candidacy 139. There are instances where candidates elected from a party list renounce their party membership or change parties during their term in office. Some states have legislation which terminates the mandate of an elected office holder due to a change in party affiliation. Such regulation is overly restrictive and potentially subject to abuse by political party leaders. Elected officials are elected by votes cast by citizens. Political party legislation should not transfer control of the voter bestowed mandate to a political party. The Venice Commission of the Council of Europe has stated concerning the control of a mandate: 64

Council of Europe Convention on the Protection of National Minorities, Article 4(2), International Convention on the Elimination of Racial Discrimination, Article 2(2).

100 Guidelines on Political Party Regulation by OSCE/ODIHR

629

“In European countries, on the other side, the theory of the free mandate of representatives is generally and widely accepted. According to this theory, members of Parliament are regarded as representatives of the whole people and are responsible only to their conscience. As a consequence, they should abide only by the rules and no other orders or instructions can be binding on them. Several constitutions even prohibit the possibility of giving instructions to deputies (Belgium, France, Germany, Italy, Switzerland). Outside Europe, the imperative mandate exists in countries like China, India, Nigeria, South Africa, Cuba, Vietnam or North Korea.”65 140. Some parties have adopted voluntary measures to respond to changes in political affiliation such as multi-party codes of conduct which obligate parties to refuse membership to elected officials attempting to change affiliation. It is the right of a political party to refuse membership in the case of a person it believes does not fundamentally uphold the party’s values, as it is the right of other parties to accept the new membership of elected officials if it is deemed warranted and desired. 141. Electoral legislation may enact minimum vote thresholds for candidates to be elected to parliament. In such cases, this minimum threshold must be met by the political party as a whole in order for individual candidates from the party to be eligible to hold seats in parliament. Minimum thresholds should not be considered illegitimate or discriminatory as long as they are applied objectively and allow for the candidacy of non-partisan (independent candidates). However, such thresholds must be enacted at a level low enough to not preclude political plurality or threaten the representativeness of the legislature. In addition, legislation regarding political parties may make specific exceptions to minimum thresholds to ensure representation from parties representing minorities. In such cases, legislation must give a clear definition of what constitutes a “minority party” in relation to eligibility for a waiver of the threshold. 2 Access to Elections a Ballot Access for Political Parties 142. States may require parties to meet certain obligations to be placed on a ballot in elections. These requirements may apply to each separate electoral contest and may apply anew to each electoral cycle. Such requirements usually include one or more of the following: payment of a monetary deposit (refundable if a party receives a predetermined percentage of votes), a show of minimum support as indicated by the collection of voters’ signatures, or the 65

See Opinion 423/2007, CDL-AD(2007)018, paragraph six.

630

chapter d

attainment of a mandate or a minimum percentage of votes in the previous election. 143. The ability for all parties to access the ballot should be equal and free from discrimination on any grounds. While monetary deposits may be required, monetary deposits which are excessive may be deemed discriminatory as they limit the right of citizens without adequate resources to stand for election as protected under human rights instruments. As with other regulations on political parties, such fees must be applied objectively to all parties. States are recommended to also provide for non-monetary methods for registration in elections, such as expression of minimum support through the collection of signatures. Alternative non- monetary methods should be available just as registration should be determined based on a minimum level of support as opposed to financial status. 144. When parties are required to show minimum support levels, they should be given adequate time to collect and file signatures. The system for the verification of signatures should be clearly defined in law so as to avoid the possibility of misuse. Particularly, requirements that a citizen only be able to sign for support of one party should be avoided as such a regulation could easily disqualify parties who attempted in good faith to fulfill this requirement. 145. The system for ballot access should not discriminate against new parties. While parties who won mandates or a minimum percentage of votes in the previous election may be automatically eligible to be placed on the ballot, there must also be fair, clear, and objective criteria for the inclusion of new parties. 146. Individual candidates should have an equal opportunity as those running as a political party candidates to access the ballot. However, legislation commonly allows candidates of parties to be exempt from particular requirements for ballot access which have already been fulfilled by the party. For example, party candidates may be exempt from the collection of signatures to show support if the party has previously collected signatures to gain recognition as a party. In such cases independent candidates may still be required to fulfill the signature support requirement. Such systems are not necessarily discriminatory; however, legislation must clearly outline what exemptions are applicable and ensure that requirements placed upon independent candidates are not more restrictive than those previously fulfilled by the party. b Media Access for Political Parties 147. The allocation of free airtime is integral to ensuring all parties, including small parties, are able to present their programs to the electorate at large.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

631

While the allocation of free airtime on state-owned media is not legally mandated through international law, it is strongly recommended that such a provision be included in relevant legislation as a critical means of ensuring an informed electorate. When made available, free airtime must be allocated to all parties on a reasonable basis and consistent with the principle of equal treatment before the law. 148. Mass media access is one of the main resources sought by parties in the campaign period. In order to ensure equal opportunity, legislation regarding access of parties and candidates to the public media should be non-discriminatory and provide for equal treatment. 149. The principle of equal treatment before the law with regard to the media refers not only to the time given to parties and candidates but also to the timing and location of such space. Legislation should set out requirements for equal treatment, ensuring there are no discrepancies between parties through the allotment of prime viewing times to particular parties and late-night or off-peak slots to other parties. 150. While the fulfillment of party registration requirements may be taken into account as a pre- requisite for being granted free media access, such a system of allocation cannot be used as a discriminatory way against non-registered (where allowed) or independent candidates. However, it is recognized that specific rules regarding the methods of allocation may intrinsically benefit parties which have undergone a process of registration. 151. Private media cannot always be regulated as strictly as publicly owned media. However, private media outlets may play a fundamental role in the public process of elections. Some osce states impose a regulation that if airtime is offered on private media, then it must be offered to all parties at the same monetary rate. 152. A key role of the media in any election is to ensure that the public has sufficient information on all candidates to make an informed choice. As such, it is a good practice to ensure that women and minority candidates, who often receive less funding or support than their male counterparts, are ensured a fair and unbiased share of media coverage. c Freedom of Assembly for Political Parties 153. All political parties should be able to fully exercise the right to peaceful assembly, particularly during the election period. Freedom of assembly should only be limited on the basis of legitimate and objective grounds necessary in a democratic society including, public order, public safety, protection of health and morals, protection of the rights and freedoms of others, and national security. For example, a silence period in the immediate pre-election period

632

chapter d

(generally 48 hours or less) is an accepted restriction on campaign activities which necessitates a limit on public party assemblies during this time. The osce/odihr – Venice Commission Guidelines for Freedom of Peaceful Assembly66 provide an overview of appropriate regulations and recommendations regarding the right of freedom of assembly, and should be observed when developing legislation relevant to political parties. 154. Parties should enjoy a right to organize and participate in public rallies and legitimate campaigning free from undue restriction. As noted in the osce/odihr – Venice Commission Guidelines for Freedom of Peaceful Assembly,67 this right may extend to access to any place or service intended for public use. 3 Parties in Election Administration a Partisan Election Management Bodies 155. There are different models of election management bodies (embs) which meet the requirements that such a body be balanced, impartial, and competent. While some election management bodies have no partisan component, other states have adopted the practice of forming election management bodies with some or all members nominated by the major political parties. In such cases, high-level positions within the body must be dispersed among parties to ensure balance.68 156. The inclusion of partisan persons on election management bodies should be carefully considered by the state when developing legislation. If such a system is chosen, it must clearly state the required qualifications for nominees and the procedures for political parties to nominate members to embs. b Parties as Observers 157. Paragraph 8 of the osce Copenhagen Document states the importance of both domestic and international observers in elections. As a part of domestic observation, it is particularly important that political parties have the right to have observers present on election day. While it will be inherently easier for parties to exercise this right than independent candidates (given the preexistence of party membership networks and communication tools), such a 66 67 68

osce/odihr Guidelines on Freedom of Peaceful Assembly (Strasbourg, 4 June 2008 cdl(2008)062), as revised in 2010. osce/odihr Guidelines on Freedom of Peaceful Assembly (Strasbourg, 4 June 2008 cdl(2008)062), as revised in 2010. See Code of Good Practice in Electoral Matters CDL-AD(2002)023rev.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

633

right should be explicitly made available to all political contestants equally in legislation. Observers should have a right to see all aspects of the voting process, to express concerns if such arise, and to report problems to their respective parties throughout the day. It is good practice that electoral legislation includes a provision which allows party observers to obtain copies of the voting results at the polling station and all levels of election administration. Such a practice can greatly increase the credibility of the process. 158. All parties should be able to fully exercise their right to have observers present throughout the voting, counting, and certification processes. Legislation must award all parties due standing before bodies tasked with electoral dispute resolution to ensure effective redress for any alleged violations against the rights of parties and their candidates. Such practices should be protected by legislation as positive measures which can increase the credibility of electoral results. XII Funding of Political Parties 1 Campaign and Political Finance a Definition and Guidelines of Campaign and Political Finance 159. Political parties need appropriate funding to fulfill their core functions, both during and between election periods. The regulation of political party funding is essential to guarantee parties independence from undue influence created by donors and to ensure the opportunity for all parties to compete in accordance with the principle of equal opportunity and to provide for transparency in political finance. Funding of political parties through private contributions is also a form of political participation. Thus, legislation should attempt to achieve a balance between encouraging moderate contributions and limiting unduly large contributions. 160. In the development of legislation osce states might adopt several important guidelines for political finance systems. These include: – Restrictions and limits on private contributions – Balance between private and public funding – Restrictions on the use of state resources – Fair criteria for the allocation of public financial support – Spending limits for campaigns – Requirements that increase transparency of party funding and credibility of financial reporting – Independent regulatory mechanisms and appropriate sanctions for legal violations.

634

chapter d

161. The funding of political parties refers both to the way in which parties fund their routine activities and campaign finance, which refers specifically to funds allocated by a party during the election process. Both routine party funding and campaign finance must be considered in legislation relevant to political parties to ensure a transparent and fair financing system. Many issues (such as limits on the allowable sources of funding) apply to both types of financing and others (such as the provision of free media time) may apply only during the election period. 162. Many osce states provide public support to parties at all times, making the distinction between political and campaign finance largely moot. However, if relevant legislation distinguishes between party and campaign financing, it should include clear and precise guidelines for the appropriate use and allocation of funds for these different reasons. For example, if regulations define general public support which may be used for any party function as separate from money appropriated specifically for campaign purposes, the definition and restriction on what constitutes a “campaign purpose” must be clearly laid out. Guidance should also be given with regards to how to classify expenses which are necessary for a campaign but still required outside of electoral periods (for instance the rental of party headquarters or employee salaries). If funds are earmarked only for use during the campaign period, the beginning, duration, and end of such a period must be clearly defined in law and reasonable. 2 Private Funding a Membership Fees 163. Political parties may require the payment of a membership fee. While such fees should not be of such a high level as to restrict membership unduly, they are a legitimate source of political party funding. Legislation should ensure that membership fees are not used to circumvent contribution limits. This can be accomplished by treating membership fees as contributions. 164. Membership fees are not inherently counter to the principles of free association. Any membership fee should be of a reasonable amount. It should be encouraged that any membership fee requirement include a waiver provision in case of financial hardship should be used to ensure that political party membership is not unduly limited to the wealthy. This waiver could also be based on a sliding scale to take into consideration the factors of each individual case. At a minimum, where fees are required, the creation of a distinct level of membership for those unwilling or unable to pay a membership fee would allow such persons to still associate with or participate in the party’s functions on a limited basis.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

635

165. While parties may enact “taxes” from their sitting parliamentarians, such “taxes” must be subject to contribution laws to ensure they do not contravene contribution limits. Further, such “funding” can create the impression that elected parliamentarians have “purchased” the mandate from the party or paid for a higher position on the electoral list. b Intra-Party Contributions and Income 166. Legislation should generally allow political parties at the national level to provide support for their regional and local offices and vice versa. Such support should be considered an internal party function and generally not be limited through legislation. However, parties can be reasonably expected to report their internal distribution of funds. In addition, legislation should ensure that total spending for an electoral contest, including funds allocated by different party branches, is in compliance with relevant spending limits. 167. Parties that produce an income through the sale of merchandise or partyrelated materials should be able to utilize these proceeds for their campaigns and operations. While the use of such proceeds must respect disclosure and spending requirements, it should not be otherwise limited by relevant legislation c Candidate’s Personal Resources 168. Candidates may apply personal resources to their election campaigns. Within a party system, such personal contributions may be added to the party funds allocated to a candidate’s campaign. 169. Although a candidate’s own contributions are often perceived to be free from the negative impact of possible corruption or undue influence, legislation may limit such contributions as part of the total spending limit during the campaign period and require the disclosure of such contributions. It is also appropriate to require that candidates file a public disclosure of assets and liabilities. However, errors in disclosure reports should not be used as a basis for denial of candidacy. d Private Contributions 170. Funding of political parties is a form of political participation and it is appropriate for parties to seek private financial contributions. In fact, legislation should require that all political parties be financed, at least in part, through private means as an expression of minimum support. With the exception of sources of funding which are banned by relevant legislation, all individuals should have the right to freely express their support of a political party of their choice through financial and in-kind contributions. However, reasonable limits on the total amount of contributions may be imposed.

636

chapter d

171. In practice, parties and candidates may be allowed by legislation to also take a loan to finance (part of) their campaign or activities. It is important that rules on transparency deal consistently with this form of resources. Taking a (bank) loan normally requires that steps be taken by the creditor and debtor well in advance, before the beginning of the campaign. The repayment takes normally some time after the end of the campaign. Thus, there is a risk that loans may not be reflected well enough in the financial reports of parties and candidates. This is all the more important since loans which are granted at particularly advantageous conditions or even possibly written-off by the creditor should in principle be treated as a form of in-kind or financial contribution, depending on the case and subject to legislation permitting donations and support from commercial entities. It may also happen that a loan is not reimbursed (partly or in whole) by the party or candidate themselves, but by a third person, in which case the loan also becomes a form of contribution. e Contribution Limits 172. Contributions from foreign sources are generally prohibited. This is consistent with the Council of Europe’s Committee of Ministers Recommendation to member states on common rules against corruption in the funding of political parties and electoral campaigns, (Rec(2003)4), which provides that “States should specifically limit, prohibit or otherwise regulate donations from foreign donors.” This restriction, practiced in many osce states, is in the interest of avoiding undue influence of foreign interests in domestic political affairs. However, this is an area that should be regulated carefully to avoid infringement of free association in the case of political parties active at an international level. Such careful regulation may be particularly important in light of the growing role of European Union Political parties as set out in the Charter on the Fundamental Rights for the European Union, Article 12(2). Additionally, such a regulation might allow some support from the funds of a foreign chapter of a political party, in line with the intent of paragraphs 10.4 and 26 of the Copenhagen Document, which envision external cooperation and support for individuals, groups and organizations promoting human rights  and fundamental freedoms. Dependent on the regulation of national branches of international associations, financial support from such bodies may not necessitate the same level of restriction. However, it should be recognized that the implementation of this nuanced approach to foreign funding may be difficult, and legislation should carefully weigh the protection of national interests against rights of individuals, groups, and associations to cooperate and share information.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

637

173. Limits have historically also been placed on domestic funding in an attempt to limit the ability of particular groups to gain political influence through monetary advantages. It is central to a system of democratic governance that parties and candidates are accountable to the citizenry, not to wealthy special interest groups. As such, a number of reasonable limitations on funding have been developed. These include limitations on state owned/ controlled companies and anonymous donors. 174. Anonymous contributions should be strictly regulated, including a limit on the aggregate amount of all anonymous contributions. Legislation should limit the aggregate maximum amount to a reasonable level designed to ensure anonymous donors cannot wield undue influence free from public scrutiny. 175. Reasonable limitations on private contributions may include the determination of a maximum level that may be contributed by a donor. Such limitations have been shown to be effective in minimizing the possibility of corruption or the purchasing of political influence. Legislation mandating contribution limits should be carefully balanced between ensuring that there is no distortion in the political process in favour of wealthy interests and in encouraging political participation, including through contributing to the parties of their choice. It is best that contribution limits are designed against inflation, for example based on a form of indexation such as minimum salary rather than absolute amounts. 3 Public Funding a Importance of Public Funding 176. Public funding and its requisite regulations (including spending limits, disclosure, and impartial enforcement) has been designed and adopted throughout the globe as a potential means of preventing corruption, to support the important role played by political parties and to remove undue reliance on private donors. Such systems of funding are aimed at ensuring that all parties are able to compete for elections in accordance with the principle of equal opportunity, thus strengthening political pluralism and helping to ensure the proper functioning of democratic institutions. Generally, legislation should attempt to create a balance between public and private contributions as the source for political party funding. In no case should the allocation of public funding limit or interfere with the independence of a political party. 177. The amount of public funding awarded to parties must be carefully designed to ensure the utility of such funding while not eradicating the need

638

chapter d

for private contributions or nullifying the impact of individual donations. While the nature of elections and campaigning in different states makes it impossible to identify a universally applicable amount of funding, legislation should put in place review mechanisms aimed at periodically determining the impact of public finance systems and the need (as such exists) to alter financial allocation amounts. Generally, subsidies should be set at a meaningful level to fulfill the objective of support, but should not be the only source of income and should not create conditions for over-dependency on state support. b Financial Support 178. Legislation should explicitly allow that state support for political parties may be financial. The allocation of public money to political parties is often considered integral to respect the principle of equal opportunity for all candidates, in particular where the state’s funding mechanism includes special provisions for women and minorities. Where financial support is awarded to parties, relevant legislation should develop clear guidelines to determine the amount of such funding, which should be allocated to recipients in an objective and unbiased manner. c Other Forms of Public Support 179. In addition to direct funding, the state may offer support to parties in a variety of other ways, including tax exemptions for party activities, the allocation of free media time, or the free use of public meeting halls for the purposes of campaign activities. In all such cases, both financial and in -kind support must be given on the basis of equality of opportunity to all parties and candidates (including women and minorities). While “equality” may not be absolute in nature, a system for determining the proportional (or equitable) distribution of state support (whether financial or in-kind) must be objective, fair and reasonable. 180. To support women’s participation in elections, the state may also consider the provision of free child-care or similar measures and the implementation of funding mechanisms to support candidates with family duties. Such non-traditional forms of in-kind contributions may be necessary to allow for the full participation of women in political life. Other such contributions aimed at supporting female or disadvantaged candidates may be considered in light of obligations to rectify historical inequalities in political life.69 181. The allocation of free airtime to candidates running for elections is one of the easiest and most effective means of state support available. In addition, 69

See, for e.g. icerd, cedaw.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

639

airtime on mass media can help to ensure a state meets its requirements to provide for an informed electorate. Furthermore, the media – as well as all communication systems – plays a crucial role in combating gender stereotypes. It contributes to presenting a realistic picture of the skills and potential of male and female candidates, as well as to the portraying of men and men in a non-stereotypical, diverse and balanced manner. As such, any system of public funding should carefully consider adopting a requirement for the allocation of airtime to eligible candidates. Where available, such airtime must be given on the basis of equal treatment before the law (distribution may reasonably be made either on the basis of absolute equality or equitably, dependent on proven level of support). Equality refers both to the amount of time given and the timing and nature of such allocations.70 182. A good practice is to provide tax credits for individuals who give in-kind contributions, whether in the form of labour or goods and services. State legislation may allow tax deductibility of such contributions, including in-kind contributions to political parties. However, in accordance with the Council of Europe’s Committee of Ministers Recommendation to member states on common rules against corruption in the funding of political parties and electoral campaigns, Rec(2003)4, it is best that legislation appropriately limit such tax deductibility. d Allocation of Funding 183. The system for allocating public support to political parties should be determined by relevant legislation. Some systems allocate money prior to an election based on the results of the previous election or proof of minimum levels of support. ther systems provide payment after an election based on the final results. Generally, a pre-election disbursement of funds, or a percentage of funding, best ensures the ability of parties to compete on the basis of equal opportunity. 184. When developing allocation systems, careful consideration should be given to pre- election funding systems, as opposed to post-election reimbursement which can often perpetuate the inability of small, new, or poor parties to compete effectively. A post-election funding system may not provide the minimum initial funding needed to fund a political campaign. Thus, systems of allocating funds in the post-election period may negatively impact political pluralism. Further, allocation should occur early enough in the electoral process to ensure an equal opportunity throughout the period of campaigning. Delaying the distribution of public funding until late in the campaign or after 70

See Code of Good Practice in Electoral Matters CDL-AD(2002)023rev, p.2.2.5.

640

chapter d

election day can effectively undermine electoral campaign equality and works against less affluent political parties. 185. The allocation of funding may either be fully equal (“absolute equality”) or proportionate in nature based on a party’s election results or proven level of support (“equitable”). There is no universally prescribed system for determining the distribution of public funding. Some have argued that legislation for public funding is generally most effective at achieving political pluralism and equal opportunity by providing a combination of both absolute and equitable equality. Where minimum thresholds of support are required for funding, it should be considered that an unreasonably high threshold may be detrimental to political pluralism and small political parties. Further, it is in the interest of political pluralism to have a lower threshold for public funding than the electoral threshold for the allocation of a mandate in parliament. 186. Legislation determining systems for allocation may also include a system of incentives to foster political participation. For instance, matching grants, in which the state provides an equal amount of funding to that donated to the party by supporters, may foster increased political engagement by the public. However, such systems do require strong oversight to ensure reported donation amounts are not inflated and that all such private donations are made with due respect to the regulatory framework governing private donations. 187. Legislation should ensure that the formula for the allocation of funding does not provide a monopoly or disproportionate amount of funding to one political party. Nor should the formula for allocation of funding allow the two largest political parties to monopolize the receipt of public funding. e Requirements to Receive Public Funding 188. At a minimum, some degree of public funding should be available to all parties represented in parliament. However, to promote political pluralism, some funding should ideally be extended beyond parties represented in parliament to all parties representative of a minimum level of the citizenry’s support and presenting candidates in an election. This is particularly important in the case of new parties, which must be given a fair opportunity to compete with existing parties. 189. The level of available public funding should be clearly defined in the relevant statutes and regulations. The rights and duties of the body with legal authority to set and revise the maximum level of support should also be clearly defined in law. Public funding of political parties must be

100 Guidelines on Political Party Regulation by OSCE/ODIHR

641

accompanied by supervision of the parties’ accounts by specific public bodies. 190. Public funding, by providing increased resources to political parties, can increase political pluralism. As such, it is reasonable for legislation to require a party to be representative of a minimum level of the electorate prior to receipt of funding. However, as the denial of public funding can lead to a decrease in pluralism and political alternatives, it is an accepted good practice to enact clear guidelines for how new parties may become eligible for funding and to extend public funding beyond parties represented in parliament. A generous system for the determination of eligibility should be considered to ensure that voters are given the political alternatives necessary for a real choice. 191. Allocation of funds based on party support for women candidates may not be considered discriminatory and should be considered in light of the requirement for special measures as defined by cedaw (Article 4). As articulated in the Council of Europe Committee of Ministers Recommendation 2003/3 on balanced participation of women and men in political and public decision making, allocation of public funds can be contingent on compliance with requirements for women’s participation.71 While it is important to respect the free internal functioning of parties with regard to candidacy selection and platform choices, public funding may be reasonably restricted based on compliance with a set of basic obligations. 192. It is reasonable for states to legislate minimum requirements which must be satisfied for the provision of public funding. Such requirements may include: – Registration as a political party – Proof of a minimum level of support – Gender balanced representation72 – Proper completion of financial reports as required (including for the previous election) – Compliance with relevant accounting and auditing standards. 71 72

Examples of such a requirement are found in the legislation of Croatia and Slovenia. A requirement for gender balance can be enacted with regards to political finance as public financial support is not a right of political parties but an advantage offered to them. The Council of Europe Committee of Ministers Recommendation 2003/3 states that: “Member states should consider adopting legislative reforms to introduce parity thresholds for candidates in elections at local, regional, national and supra-national levels. Where proportional lists exist, consider the introduction of zipper systems; consider action through the public funding of political parties in order to encourage them to promote gender equality.”

642

chapter d

4 Regulation of Party and Campaign Finance a Spending Limits 193. The regulation of party and campaign finance is necessary to protect the democratic process, including spending limits where appropriate. As noted by the United Nations Human Rights Committee in General Comment No. 25, “Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party. The results of genuine elections should be respected and implemented.” One of the key components of such a framework is the requirement for transparency. All systems for financial allocation and reporting, both during and outside of official campaign periods, should be designed to ensure transparency, consistent with the principles of the United Nations Convention Against Corruption and relevant Council of Europe recommendations.73 194. Transparency in party and campaign finance, as noted above, is important to protect the rights of voters as well as prevent corruption. Transparency is also important because the public has the right to receive relevant information and to be informed. Voters must have relevant information as to the financial support given to political parties in order to hold parties accountable. 195. Reasonable limitations on campaign expenditures might be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or political party. 196. It is reasonable for a state to determine a maximum spending limit for parties in elections in order to achieve the legitimate aim of securing equality between candidates. However, the legitimate aim of such restrictions must be balanced with the equally legitimate need to protect other rights such as rights of free association and expression. This requires that spending limits to be carefully constructed so that they are not overly burdensome. The maximum spending limit usually consists of an absolute sum or a relative sum determined by factors such as the voting population in a particular constituency and the costs for campaign materials and services. Notably, the Council of Europe Committee of Ministers has supported the latter option, with maximum expenditure limits determined regardless of which system is adopted in

73

See the United Nations Convention Against Corruption, Article 7(3). See also, the Council of Europe, Committee of Ministers. Recommendation Rec(2003)4 of the Committee of Ministers to member states on common rules against corruption in the funding of political parties and electoral campaigns, Article 3.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

643

relation to the voting population of the applicable electorate. Whichever system is adopted, such limits should be clearly defined in law. 197. In addition, the state body with power to develop and review such limits should be clearly defined and the scope of its authority specifically determined in relevant legislation. Limits should be realistic to ensure that all parties are able to run an effective campaign, recognizing the high expense of modern electoral campaigns. It is best that limits are designed against inflation. This requires that the legal rules for limits are based on a form of indexation rather than absolute amounts. b Campaign Finance Reporting Requirements 198. States should require political parties to keep records of all direct and inkind contributions given to all political parties and candidates in the electoral period. Such records should be available for public review and must be in line with the pre-determined expenditure limit. 199. Parties should also be required to file basic information with the appropriate state authority (generally an election management body or predetermined regulatory authority) prior to the beginning of campaigning. Such information should include the party’s bank account information and the personal information of those persons accountable for a party’s finances. 200. Reports on campaign financing should be turned into the proper authorities within a timely deadline of no more than 30 days after the elections. Such reports should be required not only for the party as a whole but for individual candidates and lists of candidates. The law should define the format of reports so that parties provide standard reports that disclose all categories of the required information and so that reports of parties can be compared. In an effort to support transparency, it is good practice that such financial reports are made timely and publicly available on the internet. c Political Finance Reporting Requirements 201. Article 7(3) of the United Nations Convention against Corruption (uncac) obligates signatory states to make good faith efforts to improve transparency in election candidate and political party financing. Political finance disclosure is the main policy instrument for achieving such transparency. While other forms of regulation are available for controlling the role of money in the political process, such as spending limits, bans on certain forms of income, and the provision of public funding, effective disclosure is required for other regulations to be implemented effectively. 202. Political parties should be required to submit disclosure reports to the appropriate regulatory authority at least on an annual basis even in the

644

chapter d

non-campaign period. These reports should require disclosure of incoming contributions and an explanation of all expenditures. While transparency may be increased by requirements to report the identity of donors, legislation should balance such a requirement with considerations of privacy and protection from intimidation. All disclosure reports should be on a consolidated basis that includes all levels of party activities. 203. Reports should clearly distinguish between income and expenditure. Further, reporting formats should include the itemization of donations into standardized categories as defined by relevant regulations. The nature and value of all donations received by a political party should be identified in financial reports. 204. Reports should include (where applicable) both general party finance and campaign finance. Reports must also clearly identify which expenditures were used for the benefit of the party and which were for an individual candidate. 205. A party might attempt to circumvent campaign finance requirements by conducting activities during a “pre-electoral” period or through use of others as conduits for funds or services. The use of others as conduits is known in some countries as the use of “third parties.” To limit this abuse, strong systems of political party financial reporting outside of elections must be enacted. Legislation should provide clear guidelines regarding which activities are not allowable during the pre-election campaign, and income and expenditures used for such activities during this time should be subject to proper review and sanction. Legislation should clearly state to whom political party funds may be released in the pre- election period and the limitations upon their use by third parties not directly associated with the party. 206. Transparency in reporting, which is an accepted good practice, requires the timely publication of parties’ financial reports. The fulfillment of this requirement necessitates that reports contain enough details in order to be useful and understandable for the general public. While publication of financial reports is crucial to establishing public confidence in the functions of a party, reporting requirements must also strike a balance between necessary disclosure and the privacy concerns of donors. d Abuse of State Resources 207. The abuse of state resources is universally condemned by international norms. While there is a natural and unavoidable incumbency advantage, legislation must be careful to not perpetuate or enhance such advantages. Incumbent candidates and parties must not use state funds or resources (i.e. materials, work contracts, transportation, employees) to their own advantage. Paragraph 5.4 of the osce Copenhagen Document provides, in this regard,

100 Guidelines on Political Party Regulation by OSCE/ODIHR

645

that member states will maintain “a clear separation between the State and political parties; in particular, political parties will not be merged with the State.” 208. To allow for the effective regulation of the use of state resources, legislation should clearly define what is considered abuse. For instance, while incumbents are often given free use of postal systems (seen as necessary to communicate their acts of governance with the public), mailings including party propaganda or candidate platforms are a misuse of this free resource. Legislation must address such abuses. 209. The abuse of state resources may include the manipulation or intimidation of public employees. It is not unheard of for a government to require its workers to attend a pro- government rally. Such practices should be expressly and universally banned by law. 210. Public employees (civil servants) should not be required by a political party to make payments to the party. This is a practice the law should prohibit as an abuse of state resources. 5 Regulatory Authority 211. As stated by the Council of Europe Committee of Ministers in their Recommendation 2003(4): “States should provide for independent monitoring in respect of the funding of political parties and electoral campaigns. The independent monitoring should include supervision over the accounts of political parties and the expenses involved in election campaigns as well as their presentation and publication.” 212. Monitoring can be undertaken by a variety of different bodies, including a competent supervisory body or state financial bodies. Whichever body is tasked to review the party’s financial reports, effective measures should be taken in legislation and in state practice to ensure its independence from  political pressure and commitment to impartiality. Such independence is fundamental to this body’s proper functioning and should be strictly required by law. In particular, it is strongly recommended that appointment procedures be carefully drafted to avoid political influence over members. 213. Legislation should define the procedure for appointing members to the regulatory body, clearly delineate their powers and activities, specify the types and scope of violations requiring sanction, and provide clear guidance on the process for appeal against regulatory decisions. 214. The regulatory authority should be given the power to monitor accounts and conduct audits of financial reports submitted by parties and candidates.

646

chapter d

The process for conducting such audits should be stated in relevant legislation. Financial regulation is an area too often susceptible to discriminatory or biased treatment by regulatory bodies, which should be avoided. Therefore, legislation should specify the process and procedures determining how and which party reports are selected for auditing. In all cases it is necessary that audits be non-discriminatory and objective in their application. a Sanctions for Finance Violations 215. Irregularities in financial reporting, non-compliance with financial reporting regulations or improper use of public funds should result in the loss of all or part of such funds for the party. Other available sanctions may include the payment of administrative fines by the party. As noted by the Council of Europe’s Committee of Ministers, political parties should be subject to “effective, proportionate and dissuasive sanctions” for violation of political funding laws.74 Sanctions for violations of law are more fully discussed below in paragraph 200. 216. As noted below in paragraph 200, all sanctions must be proportionate in nature. In the area of finance violations, this should include consideration of the amount of money involved, whether there were attempts to hide the violation, and whether the violation is a reoccurring violation. 217. While criminal sanctions are reserved for serious violations that undermine public integrity, there should be a range of administrative sanctions available for the improper acquisition or use of funds by parties. XIII

Monitoring of Political Parties

1 Establishment of Regulatory Bodies a Impartiality and Neutrality in Regulation 218. Regulatory authorities must remain neutral and objective in dealing with the process of political party registration (where applicable), political party finance, and regulation of party activities. Regulations must always be applied in an objective and non-discriminatory manner. ll parties should be subject to the same regulatory provisions and be provided equal treatment in the implementation of regulations.

74 Council of Europe, Committee of Ministers. Recommendation Rec(2003)4 of the Committee of Ministers to member states on common rules against corruption in the funding of political parties and electoral campaigns, Article 16.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

647

b Scope and Mandate of Regulatory Bodies 219. There should be a clear delineation of which bodies are responsible for the regulation of political parties, as well as clear guidelines establishing their functions and the limits of their authority. Generally, registration is completed by a competent state ministry or a judicial body. Whichever body is tasked with regulation should be non-partisan in nature and uphold the requirements of independence and impartiality. Parties should have the right to appeal decisions by regulatory bodies to an appropriate tribunal,75 and in all cases authorities should be held accountable for their decisions. 220. Legislation must include guidelines for how a legal violation may be brought to the attention of regulatory bodies, what powers of investigation are granted to such bodies, and the range of applicable sanctions. Generally, legislation should grant regulatory agencies the ability to investigate and pursue potential violations. Absent such investigative powers, agencies are unlikely to have the ability to effectively implement their mandate. Adequate financing to ensure the proper functioning and operation of the regulatory body are also necessary. 221. Legislation should clearly define the decision making process for regulatory bodies. Bodies charged with supervision of political parties should refrain from excessive control over party activities. The majority of these functions are internal party matters and should only come to the attention of state authorities in exceptional circumstances and then only to ensure compliance with the law. 222. In order to ensure transparency as well as increase regulatory independence, legislation should specifically define how regulatory bodies are appointed. Generally, such appointments best guarantee proper functioning if they are made on a staggered basis separate from the electoral cycle. In addition, it is generally good practice for regulatory officials to either have a lifetime appointment or be limited to a single term. This helps to ensure they can act free from political influence. In any case, it should be guaranteed that the body tasked with the appointment of regulatory officials may not dismiss them at will. 223. The timeline for decisions regarding regulation of political party activities or formation should be clearly stated in law. This is particularly important given the sensitivity and time- bound nature of the electoral process. For 75

United Nations Human Rights Committee General Comment 32, un Doc. CCPR/C/GC/3; § 18–19. See also, the Council of Europe, Committee of Ministers. Recommendation Rec(2003)4 of the Committee of Ministers to member states on common rules against corruption in the funding of political parties and electoral campaigns, Article 3.

648

chapter d

example, 30 days appears to be a reasonable maximum time period for regulatory bodies to make a decision about party establishment and registration. The law should also allow for the correction and resubmission of registration papers to rectify minor deficiencies in a party’s registration materials within a reasonable amount of time after initial rejection. c Sanctions Against Political Parties for Non-compliance with Law 224. Sanctions should be applied to political parties found in violation of relevant laws. Sanctions at all times must be objective, enforceable, effective and proportionate to their specific purpose. The use of sanctions to hold political parties accountable for their actions should not be confused with prohibition and dissolution based on a party’s use of violence or threat to civil peace and the democratic constitutional order of the country. Prohibition and dissolution based on such extreme circumstances is not a matter of holding parties accountable for legal violations, but is in fact done because is it necessary in a democratic society. Where a party is a habitual offender of legal provisions and makes no effort to correct its behaviour, the loss of registration status might be appropriate. The loss of registration status may be significant where there is state financial support for parties. 225. There should be a variety of sanctions for non-compliance with laws. As noted above, sanctions must bear a relationship to the violation and respect the principle of proportionality. Such sanctions should include: – Administrative fines, the amount of which should consider the nature of the violation, including whether the violation is a reoccurring violation – Partial or total loss of public funding and other forms of public support, which could be imposed as a temporary measure for set period of time – Ineligibility for future state support for a set period of time – Partial or total loss of reimbursement for campaign expenses – Forfeiture to the state treasury of financial support previously transferred to or accepted by a party – Ineligibility for presenting candidates in elections for a set period of time – Criminal sanctions in cases of significant violations, imposed against the party members who are responsible for the violation – Annulment of a candidate’s election to office, but only as determined by a court of law after compliance with applicable legal protections for due process of law and only if the legal violation likely impacted the electoral result – Loss of registration status for the party. 226. Where local branches of a party are found to have acted in the name of the statutory board of a national party, sanctions may be brought against the party at the national level.

100 Guidelines on Political Party Regulation by OSCE/ODIHR

649

227. Sanctions should always be compatible with the principle of proportionality. Prior to the enactment of any sanction, the regulatory authority should carefully consider the sanction’s aim against a possible detrimental effect to political pluralism or the enjoyment of protected rights. When sanctions are imposed, the public should be informed of the facts giving rise to the legal violation and the particular sanction imposed on the political party. 228. Where sanctions are imposed, the party in question should have available recourse to a fair hearing by an impartial tribunal. While regulatory authorities can determine sanctions, there should be an opportunity for a party to request that the final decision regarding sanctions should be made by the appropriate judicial body in accordance with judicial principles. 2 Rights to an Effective Remedy and Fair Hearing by an Impartial Tribunal a Right to an Effective Remedy 229. Article 13 of the European Convention on Human Rights provides that “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Similar provisions establishing the right to an effective remedy are found in Article 8 of the udhr, Article 2 of the iccpr, and Article 5 of icerd. Thus, legislation should require that the state provide an effective remedy for any violation of the fundamental rights of association and expression. The remedy may be provided by a competent administrative, legislative or judicial authority, but must be available for all violations of fundamental rights granted by international and regional instruments. Remedies must be provided expeditiously in order to be effective. A remedy that is granted too late is of little remedial benefit. In order for a remedy to be effective, it is necessary that it be timely. b Right to a Fair and Public Hearing by an Impartial Tribunal 230. Article 6 of the European Convention on Human Rights provides that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Similar provisions are found in Article 10 of the udhr and Article 14 of the iccpr. This includes the rights to have one’s case heard publicly and expeditiously by an impartial tribunal, equal access to judicial proceedings, and equality of arms. The right to a fair and public hearing, coupled with the right to an effective remedy, ensures an adequate means of redress for the violation of fundamental

650

chapter d

rights. Thus, any interference by authorities in the activities of political parties should provide an opportunity for the party to challenge such decision or action in a court of law and to have the challenge adjudicated publicly by an impartial tribunal. This is particularly true in regard to the prohibition or dissolution of a political party, where a court should make the final decision on such a serious matter. A hearing before a competent judicial authority should be necessary in all cases of dissolution or prohibition. 231. There should be legal provisions to challenge any decision by regulatory authorities which negatively impact the free association of political parties or other protected rights (including a denial of registration or loss of party status based on electoral results). Generally, judicial procedures and remedies should be available for such disputes as they relate to fundamental rights.76 Therefore, all parties should have the ability to seek appropriate recourse for decisions made by a regulatory body in a court of law. In such proceedings, parties (as a collective of individuals) must be ensured a fair and public hearing in the determination of their rights. 232. Expedited consideration is an important element to the fairness of a hearing. Proceedings cannot be delayed without risking usurpation of the right to a fair hearing.77 Legislation should define reasonable deadlines by which applications should be filed and decision granted, with due respect to any special considerations arising from the substantive nature of the decision. 233. Legislation should specify the procedures for initiating judicial review (appeal) of a decision affecting the rights of a political party. Legislation should also extend the right of judicial review of such decisions to persons or other parties that are affected by the decision. 76

77

CDL-AD(2004)007rev – Guidelines and Explanatory Report on Legislation on Political Parties: Some Specific Issues, Adopted by the Venice Commission at its 58th Plenary Session. (Venice, 12–13 March 2004). United Nations Human Rights Committee, General Comment 32, para. 27.

101 Declaration on Democracy

III

European Union

101

Declaration on Democracy

651

Adopted by the European Council, Copenhagen (Denmark), 7 to 8 April 1978 The election of the Members of the Assembly by direct universal suffrage is an event of outstanding importance for the future of the European Communities and a vivid demonstration of the ideals of democracy shared by the people within them. The creation of the Communities, which is the foundation of ever closer union among the peoples of Europe called for in the Treaty of Rome, marked the determination of their founders to strengthen the protection of peace and freedom. The Heads of State and of Government confirm their will, as expressed in the Copenhagen Declaration on the European identity, to ensure that the cherished values of their legal, political and moral order are respected and to safeguard the principles of representative democracy, of the rule of law, of social justice and of respect for human rights. The application of these principles implies a political system of pluralist democracy which guarantees both the free expression of opinions within the constitutional organization of powers and the procedures necessary for the protection of human rights. The Heads of State and of Government associate themselves with the Joint Declaration by the Assembly, the Council and the Commission whereby these institutions expressed their determination to respect fundamental rights in pursuing the aims of the Communities. They solemnly declare that respect for and maintenance of representative democracy and human rights in each Member State are essential elements of membership of the European Communities.

652

chapter d

IV

Organization for Security and Co-operation in Europe / Conference on Security and Co-operation in Europe

102

Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce – Excerpts

Adopted by the Conference on the Human Dimension of the csce, Copenhagen (Denmark), 29 June 1990 The representatives of the participating States of the Conference on Security and Co-operation in Europe (csce), Austria, Belgium, Bulgaria, Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, the German Democratic Republic, the Federal Republic of Germany, Greece, the Holy See, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, the Union of Soviet Socialist Republics, the United Kingdom, the United States of America and Yugoslavia, met in Copenhagen from 5 to 29 June 1990, in accordance with the provisions relating to the Conference on the Human Dimension of the csce contained in the Concluding Document of the Vienna Follow-up Meeting of the csce. The representative of Albania attended the Copenhagen Meeting as observer. The first Meeting of the Conference was held in Paris from 30 May to 23 June 1989. The Copenhagen Meeting was opened and closed by the Minister for Foreign Affairs of Denmark. The formal opening of the Copenhagen Meeting was attended by Her Majesty the Queen of Denmark and His Royal Highness the Prince Consort. Opening statements were made by Ministers and Deputy Ministers of the participating States. At a special meeting of the Ministers for Foreign Affairs of the participating States of the csce on 5 June 1990, convened on the invitation of the Minister for Foreign Affairs of Denmark, it was agreed to convene a Preparatory Committee in Vienna on 10 July 1990 to prepare a Summit Meeting in Paris of their Heads of State or Government. The participating States welcome with great satisfaction the fundamental political changes that have occurred in Europe since the first Meeting of the Conference on the Human Dimension of the csce in Paris in 1989. They note that the csce process has contributed significantly to bringing about these changes and that these developments in turn have greatly advanced the implementation of the provisions of the Final Act and of the other csce documents.

102 CSCE: Document of the Copenhagen Meeting

653

They recognize that pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms, the development of human contacts and the resolution of other issues of a related humanitarian character. They therefore welcome the commitment expressed by all participating States to the ideals of democracy and political pluralism as well as their common determination to build democratic societies based on free elections and the rule of law. At the Copenhagen Meeting the participating States held a review of the implementation of their commitments in the field of the human dimension. They considered that the degree of compliance with the commitments contained in the relevant provisions of the csce documents had shown a fundamental improvement since the Paris Meeting. They also expressed the view, however, that further steps are required for the full realization of their commitments relating to the human dimension. The participating States express their conviction that full respect for human rights and fundamental freedoms and the development of societies based on pluralistic democracy and the rule of law are prerequisites for progress in setting up the lasting order of peace, security, justice and co-operation that they seek to establish in Europe. They therefore reaffirm their commitment to implement fully all provisions of the Final Act and of the other csce documents relating to the human dimension and undertake to build on the progress they have made. They recognize that co-operation among themselves, as well as the active involvement of persons, groups, organizations and institutions, will be essential to ensure continuing progress towards their shared objectives. In order to strengthen respect for, and enjoyment of, human rights and fundamental freedoms, to develop human contacts and to resolve issues of a related humanitarian character, the participating States agree on the following: I (1) The participating States express their conviction that the protection and promotion of human rights and fundamental freedoms is one of the basic purposes of government, and reaffirm that the recognition of these rights and freedoms constitutes the foundation of freedom, justice and peace. (2) They are determined to support and advance those principles of justice which form the basis of the rule of law. They consider that the rule of law does not mean merely a formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression.

654

chapter d

(3) They reaffirm that democracy is an inherent element of the rule of law. They recognize the importance of pluralism with regard to political organizations. […] (6) The participating States declare that the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government. The participating States will accordingly respect the right of their citizens to take part in the governing of their country, either directly or through representatives freely chosen by them through fair electoral processes. They recognize their responsibility to defend and protect, in accordance with their laws, their international human rights obligations and their international commitments, the democratic order freely established through the will of the people against the activities of persons, groups or organizations that engage in or refuse to renounce terrorism or violence aimed at the overthrow of that order or of that of another participating State. (7) To ensure that the will of the people serves as the basis of the authority of government, the participating States will (7.1) – hold free elections at reasonable intervals, as established by law; (7.2) – permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote; (7.3) – guarantee universal and equal suffrage to adult citizens; (7.4) – ensure that votes are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public; (7.5) – respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination; (7.6) – respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities; (7.7) – ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution; (7.8) – provide that no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process;

102 Document of the Copenhagen Meeting of the Conference

655

(7.9) – ensure that candidates who obtain the necessary number of votes required by law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to an end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures. […] (24) The participating States will ensure that the exercise of all the human rights and fundamental freedoms set out above will not be subject to any restrictions except those which are provided by law and are consistent with their obligations under international law, in particular the International Covenant on Civil and Political Rights, and with their international commitments, in particular the Universal Declaration of Human Rights. These restrictions have the character of exceptions. The participating States will ensure that these restrictions are not abused and are not applied in an arbitrary manner, but in such a way that the effective exercise of these rights is ensured. Any restriction on rights and freedoms must, in a democratic society, relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law. […] III (26) The participating States recognize that vigorous democracy depends on the existence as an integral part of national life of democratic values and practices as well as an extensive range of democratic institutions. They will therefore encourage, facilitate and, where appropriate, support practical cooperative endeavours and the sharing of information, ideas and expertise among themselves and by direct contacts and co-operation between individuals, groups and organizations in areas including the following: – constitutional law, reform and development, – electoral legislation, administration and observation, – establishment and management of courts and legal systems, – the development of an impartial and effective public service where recruitment and advancement are based on a merit system, – law enforcement, – local government and decentralization, – access to information and protection of privacy, – developing political parties and their role in pluralistic societies, – free and independent trade unions, – cooperative movements, – developing other forms of free associations and public interest groups,

656

chapter d

– journalism, independent media, and intellectual and cultural life, – the teaching of democratic values, institutions and practices in educational institutions and the fostering of an atmosphere of free enquiry. Such endeavours may cover the range of co-operation encompassed in the human dimension of the csce, including training, exchange of information, books and instructional materials, co-operative programmes and projects, academic and professional exchanges and conferences, scholarships, research grants, provision of expertise and advice, business and scientific contacts and programmes. (27) The participating States will also facilitate the establishment and strengthening of independent national institutions in the area of human rights and the rule of law, which may also serve as focal points for co-ordination and collaboration between such institutions in the participating States. They propose that co-operation be encouraged between parliamentarians from participating States, including through existing inter-parliamentary associations and, inter alia, through joint commissions, television debates involving parliamentarians, meetings and round-table discussions. They will also encourage existing institutions, such as organizations within the United Nations system and the Council of Europe, to continue and expand the work they have begun in this area. (28) The participating States recognize the important expertise of the Council of Europe in the field of human rights and fundamental freedoms and agree to consider further ways and means to enable the Council of Europe to make a contribution to the human dimension of the csce. They agree that the nature of this contribution could be examined further in a future csce forum. (29) The participating States will consider the idea of convening a meeting or seminar of experts to review and discuss co-operative measures designed to promote and sustain viable democratic institutions in participating States, including comparative studies of legislation in participating States in the area of human rights and fundamental freedoms, inter alia drawing upon the experience acquired in this area by the Council of Europe and the activities of the Commission “Democracy through Law”. IV (30) The participating States recognize that the questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the rule of law, with a functioning independent judiciary. This framework guarantees full respect for human rights and fundamental freedoms, equal rights and status for all citizens, the free expression of all their legitimate interests and aspirations, political pluralism, social tolerance and

102 Document of the Copenhagen Meeting of the Conference

657

the implementation of legal rules that place effective restraints on the abuse of governmental power. They also recognize the important role of non-governmental organizations including political parties, trade unions, human rights organizations and religious groups, in the promotion of tolerance, cultural diversity and the resolution of questions relating to national minorities. They further reaffirm that respect for the rights of persons belonging to national minorities as part of universally recognized human rights is an essential factor for peace, justice, stability and democracy in the participating States. […]

658 103

chapter d

Charter of Paris for a New Europe – Excerpts

Adopted by csce, Paris (France), 19 to 21 November 1990 Meeting of the Heads of State or Government of the participating States of the Conference on Security and Co-operation in Europe (csce): Austria, Belgium, Bulgaria, Canada, Cyprus, Czech and Slovak Federal Republic, Denmark, Finland, France, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Italy -European Community, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, Union of Soviet Socialist Republics, United Kingdom, United States of America and Yugoslavia A New Era of Democracy, Peace and Unity We, the Heads of State or Government of the States participating in the Conference on Security and Cooperation in Europe, have assembled in Paris at a time of profound change and historic expectations. The era of confrontation and division of Europe has ended. We declare that henceforth our relations will be founded on respect and co-operation. Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity in Europe. Ours is a time for fulfilling the hopes and expectations our peoples have cherished for decades: steadfast commitment to democracy based on human rights and fundamental freedoms; prosperity through economic liberty and social justice; and equal security for all our countries. The Ten Principles of the Final Act will guide us towards this ambitious future, just as they have lighted our way towards better relations for the past fifteen years. Full implementation of all csce commitments must form the basis for the initiatives we are now taking to enable our nations to live in accordance with their aspirations. Human Rights, Democracy and Rule of Law We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavor, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State. Their observance and full exercise are the foundation of freedom, justice and peace.

103 Charter of Paris for a New Europe

659

Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law. We affirm that, without discrimination, every individual has the right to freedom of thought, conscience and religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement; no one will be: subject to arbitrary arrest or detention, subject to torture or other cruel, inhuman or degrading treatment or punishment; everyone also has the right: to know and act upon his rights, to participate in free and fair elections, to fair and public trial if charged with an offense, to own property alone or in association and to exercise individual enterprise, to enjoy his economic, social and cultural rights. We affirm that the ethnic, cultural, linguistic and religious identity of national minorities will be protected and that persons belonging to national minorities have the right freely to express, preserve, and develop that identity without any discrimination and in full equality before the law. We will ensure that everyone will enjoy recourse to effective remedies, national or international, against any violation of his rights. Full respect for these precepts is the bedrock on which we will seek to construct the new Europe. Our States will cooperate and support each other with the aim of making democratic gains irreversible. […]

660

chapter d

Guidelines for the Future

Proceeding from our firm commitment to the full implementation of all csce principles and provisions, we now resolve to give a new impetus to a balanced and comprehensive development of our cooperation in order to address the needs and aspirations of our peoples. Human Dimension We declare our respect for human rights and fundamental freedoms to be irrevocable. We will fully implement and build upon the provisions relating to the human dimension of the csce. Proceeding from the Document of the Copenhagen Meeting of the Conference on the Human Dimension, we will cooperate to strengthen democratic institutions and to promote the application of the rule of law. To that end, we decide to convene a seminar of experts in Oslo from 4 to 15 November 1991. Determined to foster the rich contribution of national minorities to the life of our societies, we undertake further to improve their situation. We reaffirm our deep conviction that friendly relations among our peoples, as well as peace, justice, stability and democracy, require that the ethnic, cultural, linguistic and religious identity of national minorities be protected and conditions for the promotion of that identity be created. We declare that questions related to national minorities can only be satisfactorily resolved in a democratic political framework. We further acknowledge that the rights of persons belonging to national minorities must be fully respected as part of universal human rights. Being aware of the urgent need for increased cooperation on, as well as better protection of, national minorities, we decide to convene a meeting of experts on national minorities to be held in Geneva from 1 to 19 July 1991. We express our determination to combat all forms of racial and ethnic hatred, antisemitism, xenophobia and discrimination against anyone as well as persecution on religious and ideological grounds. In accordance with our csce commitments, we stress that free movement and contacts among our citizens as well as the free flow of information and ideas are crucial for the maintenance and development of free societies and flourishing cultures. We welcome increased tourism and visits among our countries. The human dimension mechanism has proved its usefulness, and we are consequently determined to expand it to include new procedures involving, inter alia, the services of experts or a roster of eminent persons experienced in human rights issues which could be raised under the mechanism. We shall provide, in the context of the mechanism, for individuals to be involved in the

103 Charter of Paris for a New Europe

661

protection of their rights. Therefore, we undertake to develop further our commitments in this respect, in particular at the Moscow Meeting of the Conference on the Human Dimension, without prejudice to obligations under existing international instruments to which our States may be parties. We recognize the important contribution of the Council of Europe to the promotion of human rights and the principles of democracy and the rule of law as well as to the development of cultural co-operation. We welcome moves by several participating States to join the Council of Europe and adhere to its European Convention on Human Rights. We welcome as well the readiness of the Council of Europe to make its experience available to the csce. […]

662

chapter d

V

Commonwealth of Independent States

104

Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States

Adopted in Chișinău (Moldova), 7 October 2002 The member states of this Convention (hereinafter referred to as “the Parties”), considering the aims and principles of the Charter of the Commonwealth of Independent States, reaffirming the importance of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which establish that the will of the people as expressed in periodic and genuine elections shall be the basis of the authority of government, as well as the documents of the Organization for Security and Cooperation in Europe, the Council of Europe and other international organizations on the conduct of free and fair elections, Convinced that the recognition, observance and protection of human and civil rights and freedoms, the development and perfection of the democratic institutions of expression of the will of the people and the procedures for their realization in accordance with the universally accepted principles and norms of international law on the basis of the national constitution and legal acts are the purpose and obligation of a law-based state, one of the inalienable conditions for social stability and further strengthening of cooperation between the states in the name of the realization and protection of the ideals and principles which constitute their common democratic asset, Wishing to facilitate the consolidation and improvement of the democratic systems of representative government, democratic traditions of expression of the will of the people in elections, realization of other forms of the power of the people based on the supremacy of law and maximum consideration for the national and historical traditions, Convinced that elections are one of the political and legal instruments of a stable civil society and sustainable development of a state, Recognizing the value of the national experience in the legal regulation of elections accumulated by the member states of the Commonwealth of Independent States, guarantees of the electoral rights and freedoms of a human being and citizen, Determined to assure the combination of the universally accepted election standards and national norms for the regulation of elections, electoral rights and freedoms of a human being and citizen, as well as the guarantees for their realization and protection; implement the provisions of this Convention on

104 Convention on the Standards of Democratic Elections

663

the basis of the constitution and national laws and the appropriate state policy, Wishing to lay down the guarantees for organization of public and international observation of elections in the member states of this Convention, Have agreed as follows: Article 1 Standards of Democratic Elections 1. Democratic elections are one of the supreme direct expressions of the power and will of the people, the basis of elective bodies of state power and bodies of local self-government, other bodies of popular (national) representation, elective officials. 2. The Parties recognize that the election standards are the following: the right of a citizen to elect and be elected to bodies of state power and bodies of local self-government, other bodies of popular (national) representation; periodic and mandatory, fair, genuine, free elections based on universal, equal suffrage and held by secret ballot, which ensure free expression of the will of voters; open and public elections; judicial and other protection of electoral rights and freedoms of a human being and citizen; public and international observation of elections; guarantees for realization of electoral rights and freedoms of participants in the electoral process. 3. The right of a citizen to elect and be elected shall be laid down by the constitution and/or laws and the procedure for its exercise shall be established by laws and other legal acts. Legislative regulation of the right to elect and be elected, election procedures (election systems), as well as restriction of electoral rights and freedoms shall not limit or abolish the universally accepted civil and human rights and the constitutional and/or legislative guarantees for their exercise, and shall not be discriminatory. 4. Elections shall be called and conducted on the basis of the constitution and laws. 5. Elected persons, who polled the required number of votes established by the constitution, law, shall assume office in the procedure and at the time established by laws, thereby admitting their responsibility to voters, and shall remain in office until the period of their powers expires or these powers are terminated otherwise, as provided by the constitutions, laws in accordance with the democratic parliamentary and constitutional procedures. 6. The legitimate and public nature of elections, protection and realization of the electoral rights and freedoms of citizens, candidates, political parties (coalitions), participating in elections, implementation of the constitutional principles of organization of the electoral process in law enforcement practices shall be assured by the judicial, administrative and other means of protection.

664

chapter d

7. Foreign nationals, stateless persons, foreign legal entities, international public movements, international organizations shall not be allowed to participate, directly or indirectly, in any activity conducive or obstructive to the preparation and conduct of elections to the bodies of state power and bodies of local self-government, other bodies of popular (national) representation, election to elective offices. Article 2 Universal Suffrage 1. Observance of the principle of universal suffrage means the following: (a) each citizen, who has attained to the age established by the constitution, laws, has the right to elect and be elected to the bodies of state power and bodies of local self-government, other bodies of popular (national) representation, elective offices, subject to the conditions and in the procedure provided by the constitution and laws; (b) the right of a citizen to elect and be elected to the bodies of state power and bodies of local self-government, other bodies of popular (national) representation, elective offices is realizable irrespective of any discriminatory restrictions on account of sex, language, religion or faith, political or other convictions, ethnic or social origin, national minority or ethnic group to which the citizen belongs; property status; or other similar circumstances; (c) each citizen, residing or staying during the period of the national elections outside the territory of his state, has the same electoral rights as the other citizens of his state. Diplomatic and consular missions, their officials shall assist citizens in the realization of their electoral rights and freedoms; (d) each citizen has a guaranteed right to receive information about his inclusion on a voters list, correct this information so as to ensure the completeness and accuracy of this list, and appeal, in the procedure established by law, the refusal to include him on a voter’s list. Article 3 Equal Suffrage 1. Observance of the principle of equal suffrage means the following: (a) each voter has one vote or the same number of votes as other voters; he may exercise his right to vote equally with other voters and his vote (votes) is (are) accorded equivalent weight to that of other voter’s and the weight of a voter’s vote (votes) must not be affected by the electoral system used in the state; (b when voting is conducted in single-seat and/or multi-seat electoral districts these districts are formed on an equal basis, so that voting results

104 Convention on the Standards of Democratic Elections

665

should reflect the will of the voters most accurately and fully. The criterion of an equal basis may be the approximate equality of single-seat electoral districts with regard to the number of voters or the approximate equality of the number of voters per deputy mandate in multi-seat electoral districts. Deviations from the average representation quota may be allowed for hard-to-reach and remote localities, areas of compact settlement of small indigenous peoples and other national minorities and ethnic groups. 2. Each voter shall have the right to equal and free access to the electoral precinct and to the polling station for exercising his right to participate in free voting. 3. A citizen may be given a possibility to exercise his right to participate in voting through organization of early voting, voting outside the polling station or by means of other voting procedures ensuring the maximum convenience for voters. 4. Each citizen shall have equal legal opportunities for self-nomination in elections. 5. Restrictions connected with special requirements to participation in an election campaign of candidates running for election to an elective office for a new term shall be regulated by the constitution and laws. Compliance with the established restrictions must not prevent deputies, elective officials from exercising their powers and performing their obligations to voters. 6. Candidates shall not take advantage of their position or official status to gain election. The list of violations of the principle of equal suffrage and the responsibility for such violations shall be established by law. Article 4 Direct Suffrage 1. Observance of the principle of direct suffrage means that in elections citizens directly vote for the candidate and/or list of candidates or against the candidate, candidates, list of candidates or against all candidates and/or lists of candidates. 2. All deputy mandates of one of the chambers of the national legislative body shall be an object of free competition between candidates and/or lists of candidates in the course of general elections. 3. If a national legislative body consists of two chambers and some of or all mandates of the other chamber of this body are not an object of free competition between candidates and/or lists of candidates in the course of general elections, this does not contradict the provisions of this Convention. Article 5 Secret Voting 1. Observance of the principle of secret voting means exclusion of any control whatsoever over the expression of the will of voters, assurance of equal conditions for making a free choice.

666

chapter d

2. The rights of citizens to secret voting shall not be restricted in any way and by anything. 3. Elections shall be held with the use of a secret voting procedure. 4. Election bodies shall ensure observance of conditions, established by the constitution, law, other legal acts, which make it impossible for anyone to control or watch ballots being marked by voters at the place of secret voting, or do any acts violating the secrecy of voting. Article 6 Periodic and Mandatory Elections 1. Election of elective bodies of state power, bodies of local self-government, other bodies of popular (national) representation, elective officials shall be mandatory and shall be held within the periods established by the constitution and laws. 2. Elections shall be held at the intervals established by the constitution, laws so that the basis for the elective bodies of state power, bodies of local self-government, other bodies of popular (national) representation, elective officials be always formed by the free will of the people. 3. The period of powers of elective bodies and officials shall be established by the constitution and laws and may be changed only in accordance with the procedure established thereby. 4. No actions shall be taken or calls made which incite, or aim to incite, disruption, cancellation or postponement of elections, electoral actions and procedures announced in accordance with the constitution, laws. 5. In the conditions of a state of emergency or martial law imposed for safeguarding the security of citizens and protecting the constitutional system in accordance with the constitution, restrictions may be imposed by laws on the rights and freedoms, with the indication of their scope and period and elections may be postponed. Article 7 Open and Public Elections 1. Elections shall be prepared and conducted openly and publicly. 2. Decisions of bodies of state power, bodies of local self-government election bodies, which are adopted within the scope of their competence and relate to the calling, preparation and conduct of elections, assurance and protection of the electoral lights and freedoms of a citizen, shall be officially published or made known to the general public by other methods, in the procedure and within the period established by laws. 3. Legal acts and decisions affecting the electoral rights, freedoms and obligations of a citizen shall not be applicable unless they have been officially published for general information.

104 Convention on the Standards of Democratic Elections

667

4. Within the period established by the election laws the election body shall officially publish the information about the voting returns and elected persons, in its organ or other media outlets. 5. Observance of the principle of open and public elections must ensure creation of legal conditions for public and international monitoring of elections. Article 8 Free Elections 1. The supremacy of the constitution shall be the basis for holding free elections and for making it possible for citizens and other participants in the electoral process to choose, without any influence, coercion, threat of coercion or any other unlawful inducement, whether to participate or not to participate in elections in the forms allowed by law and by lawful methods, without fear of any punishment or mistreatment regardless of voting returns and election results, as well as the basis for the legal and other guarantees of strict observance of the principle of free elections in the course of the entire electoral process. 2. Participation of a citizen in elections shall be free and voluntary. No one shall compel him to vote for or against any definite candidate (candidates), any definite list of candidates and no one shall compel him to participate or not to participate in elections or prevent him from freely expressing his will. No voters shall be compelled by anyone to declare how he intends to vote or has voted for a candidate (candidates), lists of candidates. 3. Candidates, political parties (coalitions) and other participants in the electoral process shall bear responsibility to the public and the state in accordance with the constitution and law. No candidate, no political party (coalition), no other public association or public organization shall use the methods of psychic, physical, religious compulsion or calls for violence or threats of violence or any other forms of coercion. Article 9 Genuine Elections 1. Genuine elections shall ensure determination of a freely expressed will of the people and its direct realization. 2. Genuine elections shall make it possible for voters to elect candidates on the basis of the constitution and laws. In genuine elections there is real political pluralism, ideological diversity and a multi-party system realized through the functioning of political parties whose lawful activity is under the legal protection of the state. 3. In genuine elections voters shall have free access to the information about candidates, lists of candidates, political parties (coalitions) electoral process, and candidates, political parties (coalitions) – to the mass information and telecommunications media.

668

chapter d

4. Elections shall be prepared and conducted with the use of the official language or official languages of the state and, in cases and in the procedure provided by laws, also with the use of official languages of parts of the territory of the state, languages of peoples and nationalities, national minorities and ethnic groups on the territories of their compact settlement. 5. Elections shall be called and electoral actions and procedures carried out in the procedure and within the periods which allow candidates, political parties (coalitions) and other participants in the electoral process to organize a fullfledged election propaganda campaign. 6. In genuine elections equal and fair legal conditions shall be ensured for registration of candidates, lists of candidates and political parties (coalitions). Requirements to registration shall be clear and free from any conditions which may serve as a basis for discriminatory privileges or restrictions. Arbitrary or discriminatory use of the rules for registration of candidates, lists of candidates and political parties (coalitions) shall not be allowed. 7. Each candidate and each political party (coalition) participating in elections shall accept the voting returns and results of democratic elections and shall have a possibility to appeal, in courts and/or other bodies, voting returns and election results which violate the electoral rights and freedoms of a citizen, in the procedure and within the period established by laws, international obligations of the state. 8. Persons and bodies falsifying vote count, voting returns and election results, interfering with free realization by a citizen of his electoral rights and freedoms, including in the form of a boycott or calls for a boycott of elections, refusal to perform electoral procedures or electoral actions, shall be prosecutable under law. Article 10 Fair Elections 1. Observance of the principle of fair elections must ensure equal legal conditions to all participants in the electoral process. 2. Fair elections shall guarantee: (a) universal and equal suffrage; (b) equal possibilities for participation of each candidate or each political party (coalition) in an election campaign, including access to the mass information and telecommunications media; (c) fair and public funding of elections, election campaigns of candidates, political parties (coalitions); (d) honest voting and vote counting; rapid provision of full information about voting results and official publication of all election results;

104 Convention on the Standards of Democratic Elections

669

(e) organization of the electoral process by impartial election bodies, working openly and publicly under effective public and international observation; (f) prompt and effective adjudication of complaints about violation of electoral rights and freedoms of citizens, candidates, political parties (coalitions) to be performed by courts and other duly authorized bodies within the time frame of the appropriate stages of the electoral process, assurance of a citizen’s right to apply to international judicial bodies for protection and restoration of his electoral rights and freedoms, in a procedure established by the norms of international law. 3. Candidates may be nominated by voters of the appropriate electoral district or may nominate themselves. Candidates and/or lists of candidates may be also nominated by political parties (coalitions), other public associations and other entities which have the right to nominate candidates and/or lists of candidates under the constitution, laws. Article 11 Conduct of Elections by Election Bodies (Election Commissions) 1. Preparation and conduct of elections, assurance and protection of electoral rights and freedoms of citizens and control over their observance shall be entrusted to election bodies (election commissions), with their status, competence and powers being established by the constitution, legislative acts. 2. No other structures (bodies, organizations) shall be formed or allowed to operate which supersede election bodies or perform, fully or partially, their functions, or obstruct or unlawfully interfere with their lawful activity, or appropriate their status and powers. 3. The procedure for the formation of election bodies, their powers, organization of their activity as well as the procedure, grounds, and time for dissolution of an election body or early termination of the powers of its member shall be established by law. The procedure and time of early termination of powers of members of an election body established by law and appointment by a duly authorized body of a new member of an election body to fill the vacancy shall not prevent the election body from exercising its powers, shall not affect the integrity of the electoral process, delay the performance of electoral actions, violate the electoral rights and freedoms of citizens. 4. The Parties admit that a candidate, a political party (coalition), which nominated a list of candidates, may be granted the right to appoint, in a procedure established by law, one non-voting member to the election body which registered the candidate (list of candidates) and to the lower election bodies for representing this candidate, political party (coalition).

670

chapter d

5. A non-voting member of an election body may speak at meetings of the election bodies, make proposals on the questions within the scope of competence of the election body, ask that these questions be put to the vote, submit complaints against actions (omissions) of the election body to the higher election body or to a court, exercise other powers provided by law. 6. Decisions taken by election bodies within the scope of their competence shall be binding on the bodies of executive power, state institutions, bodies of local self-government, political parties and other public associations, their authorized representatives, organizations, officials, voters, lower election bodies, other persons and organizations indicated in laws. 7. The Parties shall, by their laws, impose an obligation on state bodies, bodies of local self-government, institutions, organizations and on their officials to assist election bodies in the exercise of their powers and shall oblige tv and radio companies and print media indicated in the election laws to provide, respectively, free air time and free space for information of voters about the election, progress of the election campaign. Article 12 Funding of Elections and Election Campaigns of Candidates, Political Parties (Coalitions) 1. The activities connected with elections shall be funded from the budget. 2. In cases and in the procedure provided by the constitutions and laws the state shall, on a fair basis, allocate budget funds to candidates, political parties (coalitions), participating in elections and shall allow formation of an extrabudgetary fund at an election body or formation of their own funds to finance their election campaigns, using for these purposes their own money and voluntary donations from natural persons and/or national legal entities, in the amount and in the procedure established by laws. The use by candidates, political parties (coalitions) of any sums of money other than those contributed to the said funds shall be prohibited by and punishable under laws. 3. All foreign donations, including those from foreign natural persons and legal entities, to candidates, political parties (coalitions), participating in elections, to any other public associations, public organizations, which are directly, indirectly or otherwise associated with a candidate, political party (coalition) or are under their direct influence or control and facilitate, or assist in, the implementation of the aims of a political party (coalition), shall not be allowed. 4. The Parties shall ensure openness and transparency of all monetary donations to candidates, political parties (coalitions), participating in elections, so as to exclude donations prohibited by law being made to candidates or to political parties (coalitions), which nominated candidates (lists of candidates) in elections.

104 Convention on the Standards of Democratic Elections

671

5. Candidates, political parties (coalitions), participating in elections, shall, at the intervals established by law, submit to election bodies and other bodies, designated by law, the information and reports concerning receipt of all donations to their election funds, the donors, all expenditures made from these funds to finance their election campaign. Election bodies shall arrange for publication of such information and reports in the mass information and telecommunications media indicated in laws. 6. A special body (bodies) may be organized to control or oversee compliance with the rules and procedures for campaign funding of candidates, political parties (coalitions), or appropriate powers shall be vested in officials or election bodies. 7. A list of violations of the conditions and procedure for making donations, funding the activity of candidates, political parties (coalitions) as well as a list of measures to avert, prevent or stop infractions in election funding and funding of election campaigns of candidates, political parties (coalitions) shall be established by laws, other legal acts. Article 13 Informational Support of Elections and Election Campaigning by the State 1. The Parties shall ensure the freedom of the search for, collection, dissemination of information about elections, candidates and impartial information coverage of elections in the mass information and telecommunications media. 2. The mass information and telecommunications media are called upon to keep the population informed about elections, nomination of candidates (list of candidates), their election programs (platforms), the progress of an election campaign, voting returns and election results operating within the framework of the constitution, laws, international obligations of the state. 3. In accordance with law members of the press representing mass information and telecommunications media may: (a) attend meetings of election bodies to ensure publicity and openness of their activity; (b) examine documents and materials of election bodies relating to voting returns or election results, make copies of such documents and materials or receive such copies from the election body, pass them on to the mass information and telecommunications media for publication; (c) attend public campaigning events and cover them in the mass media; (d) be present at voting, vote counting, establishment of voting returns and election results.

672

chapter d

4. Citizens, candidates, political parties (coalitions), which nominated a candidate and/or a list of candidates, other public associations, public organizations shall be guaranteed freedom of campaigning carried out in all forms allowed by law and by lawful methods, in the procedure and within periods established by laws, in the conditions of pluralism of opinions and absence of censorship. 5. In accordance with the constitution, laws all candidates, political parties (coalitions) participating in elections, shall have an equal opportunity of access to the mass information and telecommunications media, including such access for presenting their election program (platform). 6. In the course of election campaigning no abuse of the freedom of speech and freedom of mass information shall be allowed, including calls for a violent seizure of power, violent change of the constitutional system and violation of the territorial integrity of a state, warmongering, calls for terrorist or other violent acts inciting social, racial, national, ethnic, religious hatred and enmity. 7. The mass information and telecommunication media of any one member state of this Convention shall not be used for participation in the campaigning when elections are held in the territory of another state. 8. The list of violations of the conditions and procedure for campaigning carried out by candidates, political parties (coalitions) and infractions in the coverage of an election campaign by the mass media, which constitute grounds for bringing the violators to responsibility, shall be established by laws. Article 14 Status and Powers of National Observers 1. Each candidate, each political party (coalition), other public associations (public organizations), each group of voters, other subjects of elections indicated in the constitution, laws may, in the procedure established by laws or by regulations of election bodies organizing the elections, appoint national observers who have the right to carry out observation on voting day, including the day of early voting, at polling stations. 2. The rights and obligations of national observers shall be defined by law. 3. National observers shall be granted the following rights: (a) to examine election documents indicated in election laws; receive information about the number of voters on voter lists and the number of voters who took part in the voting, including early voting and voting outside the polling station; (b) to be present at the polling station; (c) to watch ballots being issued to voters; (d) to be present at early voting, voting outside the polling station; (e) to watch vote counting under conditions in which the ballot counting procedure is observable;

104 Convention on the Standards of Democratic Elections

673

(f) to watch an election body drawing up protocols of voting returns and election results and other documents; examine the protocol of voting returns drawn up by an election body, including the redrafted protocol; receive certified copies of the said protocols from the election body in cases and in the procedure provided by the national laws; (g) to make proposals and comments to an election body concerning organization of voting; (h) to appeal decisions and actions (omissions) of an election body and its members to the next higher election body or to a court. 4. In cases and in the procedure provided by laws the rights of a national observer may also be granted to agents of candidates, political parties (coalitions). 5. Election bodies and/or other bodies and organizations may be authorized to organize education of national observers and other election participants in the fundamentals of democratic election technologies, national election laws, international election standards, assurance and protection of electoral rights and freedoms of a human being and citizen. Article 15 Status and Powers of International Observers 1. The Parties reaffirm that the presence of international observers is conducive to openness and publicity of elections observance of international obligations of states. They shall strive to promote access of international observers to electoral processes at levels lower than the national level, down to municipal (local) elections. 2. The activity of international observers shall be regulated by the laws of the country where they work, this Convention, other international documents. 3. International observers shall be granted visas to enter a state in the procedure established by law and, if they have an appropriate invitation, shall be accredited by the relevant election body. Invitations may be extended by bodies duly authorized to do so by law, after official publication of the decision to call the elections. Proposals to extend invitations may be made by the bodies of the Commonwealth of Independent States established under its Charter. 4. The central election body shall issue international observers with an accreditation card of an established form. Such card shall entitle an international observer to carry out observation during the period of preparation and conduct of elections. 5. In the territory of the state where they stay international observers shall be under the patronage of this state. Election bodies, bodies of state power, bodies of local self-government shall, within the scope of their competence, render them necessary assistance.

674

chapter d

6. International observers shall carry on their activity by themselves and in dependently. The activity of international observers shall be technically and financially supported by the organization which sent them and/or at their own expense. 7. International observers shall not use their status to engage in any activity unrelated to monitoring of the election campaign. The Parties reserve the right to withdraw accreditation of international observers who violate laws, universally accepted principles and norms of international law. 8. International observers may: (a) have access to all documents (except for documents which affect the interests of national security) regulating the electoral process; receive from election bodies necessary information and copies of the election documents indicated in national laws; (b) establish contacts with political parties, coalitions, candidates, private persons, officials of election bodies; (c) freely visit all election precincts and polling stations, including on voting day; (d) observe the progress of voting, vote counting and determination of voting returns under conditions in which the ballot counting procedure is observable; (e) acquaint themselves with the results of adjudication of complaints (applications) and grievances relating to violation of election laws; (f) inform officials of election bodies about their observations and recommendations without interfering in the work of election bodies; (g) publicize their opinion about the preparation and conduct of elections after the end of voting; (h) present to election officials, bodies of state power and relevant officials their conclusions concerning the results of monitoring of the elections. 9. International observers shall: (a) observe the constitution and laws of the country where they work, the provisions of this Convention and other international documents; (b) carry the accreditation card of an international observer, issued in accordance with the procedure established by the country where they work, and produce it whenever requested by election officials; (c) when performing their functions abide by such principles as political neutrality, impartiality, non-expression of any preferences or opinions with regard to election bodies, bodies of state power and other bodies, officials, participants in the electoral process; (d) never interfere in the electoral process; (e) base their conclusions and observations on factual material.

104 Convention on the Standards of Democratic Elections

675

Article 16 Complaints about, and Responsibility for, Violation of Electoral Rights and Freedoms of Citizens 1. In the event of violation of the standards of democratic elections, electoral rights and freedoms of citizens, proclaimed in this Convention, and violation of election laws the injured person or persons shall have the right and possibility to complain about the violation to, and have the violated rights restored by, courts and, in cases and in the procedure provided by laws, election bodies. 2. Persons guilty of unlawful actions (omissions) shall bear responsibility in accordance with laws. Article 17 Electoral Documentation 1. Ballots, other electoral documents, including documents of bodies of state power, bodies of local self-government, election bodies, relating to the conduct of elections shall be drawn up (published) in the official language of the state and official languages of the parts of the territory of the state where elections are held and, in the procedure established by law, in the languages of peoples and nationalities, national minorities and ethnic groups in the territories of their compact settlement. 2. Electoral documents used to determine voting returns and election results shall be treated as documents of strict accountability and their degree of protection shall be established by laws. Article 18 Measures Not to Be Considered Discriminatory 1. The electoral rights and freedoms of a citizen set out above may be restricted by the constitution, laws without being considered discriminatory if they provide for: (a) special measures taken to ensure an adequate representation of some part of a country’s population, in particular national minorities and ethnic groups, which, owing to political, economic, religious, social, historical and cultural conditions, are unable to enjoy the political and electoral rights and freedoms on an equitable basis with the rest of the population; (b) restriction of the right to elect and be elected in respect of citizens pronounced to be incapable by a court, persons kept in places of confinement under a court sentence. 2. Restrictions on nomination of candidates and lists of candidates, creation and activity of political parties (coalitions), electoral rights and freedoms of citizens may be imposed in the interests of protection of the constitutional system, national security, maintenance of public order, protection of public well-being and morals, civil rights and freedoms. Such restrictions shall conform to the international obligations of a state.

676

chapter d

3. In their wish to democratize the electoral process the Parties proceed from the fact that the existing restrictions on, or advantages with regard to, the realization of electoral rights and freedoms, which are provided by the constitution, laws and do not run counter to the international obligations of a state, shall be abolished as proper national conditions appear, so as to ensure that participants in the electoral process have equal legal conditions for participation in elections. Article 19 Obligations of Member States of the Convention 1. The Parties shall take legislative and other measures to strengthen the guarantees of electoral rights and freedoms for the preparation and conduct of democratic elections and realization of the provisions of this Convention. The standards of democratic elections, electoral rights and freedoms, proclaimed in this Convention may be guaranteed through their inclusion in the constitution, legislative acts. 2. The Parties undertake: (a) to guarantee protection of the democratic principles and norms of the election laws, the democratic nature of elections, free expression by citizens of their will in elections, reasonable requirements to declaring elections to have taken place and be valid and legitimate; (b) to take the necessary measures to ensure that the entire election legislation should be adopted by the national legislative body and that the legal standards for the conduct of elections should not be established by the acts of the bodies of executive power; (c) to strive to ensure that deputy mandates of the other chamber of the national legislative body should be, fully or partially, an object of free competition of candidates and/or lists of candidates in the course of the direct general elections, in the procedure established by laws; (d) to work for the creation of a system of legal, organizational, informational, guarantees of the electoral rights and freedoms of citizens in the preparation and conduct of elections of all levels; take necessary legislative measures to guarantee women fair and real possibilities, equal to those of men, for exercising the right to elect and be elected to elective bodies and elective offices, both personally and as members of political parties (coalitions) in accordance with the conditions and procedures established by the constitution, laws; create additional guarantees and conditions for participation in elections of persons with physical infirmities (disabled persons, etc.); (e) to carry out registration of voters on the basis of a legislatively established non-discriminatory and effective procedure providing for such

104 Convention on the Standards of Democratic Elections

677

registration criteria as age, citizenship, residence, availability of the main document certifying the identity of a citizen; (f) to establish legislatively the responsibility of persons, furnishing information about voters, for the accuracy, fullness and timely presentation of such information, for ensuring confidentiality of the personal data as prescribed by law; (g) to facilitate formation of political parties and their free legitimate activity; legislatively regulate funding of political parties and the electoral process; ensure that the law and the national policy should provide for separation of party and state and that election campaigns should be conducted in the atmosphere of freedom and honesty allowing parties and candidates freely to present their political views and opinions, their election programs (platforms) and allowing voters to get acquainted with and discuss them and vote “for” or “against” freely, without any fear of punishment or any kind of persecution; (h) to adopt measures guaranteeing impartial coverage of the election campaign by the mass media, including in the Internet, and making it impossible to erect legal and administrative barriers preventing political parties and candidates from gaining access to the mass media on a nondiscriminatory basis; form a unified data bank of public polls connected with elections from which information must be available for examination or copying to participants in the electoral process and to i­ nternational observers upon their request; introduce new information technologies, ensuring openness of elections and raising the trust of voters in voting returns and election results; (i) to adopt national programs of civic education and participate in drafting and adoption of similar international programs; make arrangements for acquainting citizens and other election participants with, and educating them in, electoral procedures and rules, for raising their legal culture and for improving professional qualifications of election officials; (j) to ensure creation of independent impartial election bodies, which organize the conduct of democratic, free, fair, genuine and periodic elections in accordance with laws and international obligations of the state; (k) to ensure that candidates, who polled the required number of votes established by law, could properly assume office and remain in office until the period of their powers expires or their powers are terminated in some other manner regulated by law; (l) to take legislative measures to regulate the list of violations of the electoral rights and freedoms of citizens, as well as the grounds and procedure for bringing to criminal, administrative and other responsibility the

678

chapter d

persons who use coercion, fraud, threats, forgery or other methods to prevent free exercise by a citizen of the right to elect and be elected, realization of other electoral rights and freedoms laid down by the constitutions and laws; (m) to facilitate, for the exchange of information and joint use, the creation of a unified data bank containing information about national election laws, participants in the electoral process (with due regard the confidential nature of personal data), law enforcement and judicial practices, legislative proposals for the improvement of the election system, as well as other information relating to the organization of the electoral process; (n) to promote cooperation between the election bodies of the member states of this Convention, including the creation and/or expansion of the powers of the existing inter-state associations of election bodies. Article 20 Rights Granted Irrespective of this Convention 1. Nothing in this Convention shall prevent the states from the fulfillment of their international obligations relating lo the electoral rights and freedoms of citizens assumed under international treaties and agreements to which they are a party. 2. The exercise of the rights set out in this Convention shall not by detrimental to the realization of universally accepted human rights and fundamental freedoms by all persons. 3. Nothing in this Convention may be construed as allowing any activity which runs counter to universally accepted human rights and fundamental freedoms by all persons the purposes and principles of the Charter of the Commonwealth of Independent States. Article 21 Status of the International Electoral Council The Parties recognize the need to establish an Inter-State Electoral Council on the basis of the election bodies of the member states of this Convention, which will be called upon to facilitate observation of elections in the member states of this Convention.

105 The Chisinau Declaration of the guuam Heads of States

679

VI

guam Organization for Democracy and Economic Development

105

The Chisinau Declaration of the guuam Heads of States “In the Name of Democracy, Stability and Development”

Adopted by the Heads of States of the Republics of Azerbaijan, Georgia, Moldova and Ukraine, Chișinău (Moldova), 22 April 2005 The Heads of States of the Republic of Azerbaijan, Georgia, the Republic of Moldova, and Ukraine, Guided by the goals and the principles of the United Nations Charter, the founding documents of the Organization for Security and Cooperation in Europe and of guuam, its Yalta Charter in particular, Confirming the commitment of the guuam states to the European norms and values and their aspirations toward European integration, Stressing the growing role of regional cooperation within the pan-European processes based on mutual respect for the sovereign rights of states, and emphasizing that such cooperation contributes to the development of democracy, aiming to strengthen security and stability, economic prosperity, cultural and social development, Aspiring to assert democratic values in all areas of governance and civil society, strictly observing human rights, strengthening the spirit of trust, tolerance and supremacy of law in internal and international affairs, Expressing deep concern over the continuing crises and increasing risks to security, particularly threats of international terrorism, aggressive separatism, extremism and related negative phenomena, Emphasizing the fact that unresolved conflicts in some of the guuam states undermine their sovereignty, territorial integrity and independence, complicate the full-scale implementation of democratic reforms and the economic development of the region, impact adversely on European integration process, and pose a challenge to the international community, Welcoming the enlargement of the European Union, and expressing readiness for closer cooperation based on European norms and standards, Highlighting the openness of guuam to other countries and organizations sharing the same principles and goals, 1. Declare their commitment to the principles of democracy, rule of law and respect for human rights and freedoms, democratic stability and development of economic cooperation among the guuam states in the interest of their peoples.

680

chapter d

2. Confirm the need for further strengthening and enhancement of cooperation of states to counteract international terrorism and extremism and such related negative phenomena as illicit drug trafficking, transnational organized crime, human trafficking, illegal migration, proliferation of weapons of mass destruction, illegal arms trade, money laundering and corruption, to implement the Declaration’s provisions on concerted efforts to provide stability and security in the region and the Agreement on cooperation among the Governments of the guuam member states in the area of fighting terrorism, organized crime and other dangerous crimes. 3. Express their firm determination to make a joint contribution to sustaining peace and stability, affirm their intention to establish military and political cooperation, including peacekeeping operations. 4. Stress the futility and destructiveness of separatism and disintegration, incompatibility of the use of force, ethnic cleansing and territorial seizures with the European experience and values, which, in particular, include ethnical and cultural diversity. They underline the importance of intensifying the concerted efforts by guuam states and the international community in resolving the Transnistria problem and the conflicts in Azerbaijan and Georgia on the basis of norms and principles of international law, by reintegrating uncontrolled territories into the states, of which they are a part, and ensuring that various ethnic groups live together in peace within internationally recognized borders of states. 5. Stress the importance of the Istanbul osce Summit in 1999 and appeal to all the osce states to undertake all the efforts for the realization by Russia of the approved commitments regarding the entire exclusion of the Russian troops and munitions from the Republic of Moldova and Georgia. 6. Pledge to support the peaceful initiatives and processes aiming at the resolution of the existing conflicts. In this context they welcome the recent proposals, the peace plan presented by the President of Georgia for South-Ossetia autonomy, the continuing of the “Prague process” of negotiations within the osce Minsk group, as well as the appearing during the guuam Summit of the proposals of the President of Ukraine and the President of Romania concerning solving of the Transnistrian problem. 7. Confirm the policy of deepening European integration of the guuam states, establishing partner relationships with the European Union and nato with the purpose of creating a common security space, economic and transport cooperation, and declare their intention to closely cooperate in these areas. Confirm the intention to continue mutually beneficial cooperation with the usa and to develop the closest relations with organizations and states sharing these principles and goals of guuam.

105 The Chisinau Declaration of the guuam Heads of States

681

8. Call for the soonest possible implementation of the Agreement on establishing a free trade area, the use of the transit potential, such as reliable supply of energy carriers, efficient and safe operation of transport corridors, which will facilitate the strengthening of European integration and the provision of international security, the development of trade and economic relations along East–west routes, improvement of transport communication infrastructure in the strategically important guuam region. 9. Stress the need for energy cooperation within guuam, in particular intensifying efforts to implement joint programs and projects, on the basis of their commercial profitability, to transport energy resources of the Caspian region to the European energy market, using of the territories of the participating states. 10. Call for strengthening cooperation on humanitarian issues, in particular in tourism, healthcare, education, culture and sport. 11. To attain the goals of the Yalta Charter of guuam and those of the present Declaration, bearing in mind the importance of economic and social development, the formation of an area of democratic stability and security in the guuam region, and to impart a fresh impetus to our cooperation, declare their intention to set up, on the basis of guuam, a regional organization, which has the goal of development and democracy. 12. The Presidents assigned the Council of Ministers of Foreign Affairs of the Union to elaborate on the relevant issues and present coordinated proposals.

682 106

chapter d

Charter of Organization for Democracy and Economic Development – guam – Excerpts

Adopted by the Heads of States of the Republics of Azerbaijan, Georgia, Moldova and Ukraine, Kyiv (Ukraine), 23 May 2006 The guam Group Participating States – the Republic of Azerbaijan, Georgia, the Republic of Moldova and Ukraine, hereinafter referred to as the “Parties,” Guided by generally recognized norms and principles of international law concerning the maintenance of peace, security, the development of good neighbourly and friendly relations among the states, in particular the provisions of the Charter of the United Nations, the Helsinki Final Act, the Paris Charter for New Europe and the Charter for European Security of the Organization for Security and Cooperation in Europe, Reaffirming adherence to the purposes and principles of cooperation defined in the guuam Yalta Charter of 7 June 2001 and other fundamental documents adopted within the Group, Aimed at implementing the provisions of the Chisinau Declaration “In the Name of Democracy, Stability and Development” of 22 April 2005, Reiterating adherence to the democratic norms and values and determination to further proceed on the path of European integration, Expressing deep concern with regard to the unsettled protracted conflicts and increasing security threats, including those originating from conflict zones, in particular, threats of international terrorism, aggressive separatism and extremism and other dangerous phenomena related to them, Emphasizing the increasing role of regional cooperation based on mutual respect of sovereign rights of states in the pan-European processes, and underlining that such cooperation promotes the development of democracy with the purpose of strengthening security and stability, economic development, cultural and social prosperity, Expressing desire to promote democratic values in all spheres of activities of the state and society, respect fully human rights, strengthen the spirit of confidence and tolerance, ensure supremacy of the rule of law both in internal and international affairs, Based on historically developed relations of their peoples, Aspiring to further deepening of comprehensive cooperation, Believing that their cooperation is entering a qualitatively new stage, Have agreed to transform guam Group into an international regional ­organization – “Organization for Democracy and Economic Development – guam,” hereinafter referred to as “guam,” and, to this end, adopted the present Charter.

106 GUAM-CHARTER



683

Chapter I Purposes and Principles of Cooperation

Article 1 The main purposes of guam are: – promoting democratic values, ensuring rule of law and respect of human rights; – ensuring sustainable development; – strengthening international and regional security and stability; – deepening European integration for the establishment of common security space, and expansion of cooperation in economic and humanitarian spheres; – development of social and economic, transport, energy, scientific and technical, and humanitarian potential of the Parties; – intensification of political interaction and practical cooperation in the fields of mutual interest. Article 2 In order to achieve these purposes, the Parties shall develop mutually beneficial cooperation, guided by the principles of respect for sovereignty and territorial integrity of the states, inviolability of their internationally-recognized borders and non-interference in their internal affairs and other universally recognized principles and norms of international law. […]

Chapter IV Final Provisions

Article 19 1. The present Charter is concluded for an indefinite term. 2. The present Charter is to be applied provisionally as of the date of its signature and shall enter into force as of the date of receipt by the depositary of the last written notification on fulfilment by the Parties of all internal procedures, necessary for its entry into force. Article 20 1. After its entry into force, the present Charter shall be open for accession of the states on membership of which in guam the decision of the chs is taken. 2. For the acceding state, the present Charter shall enter into force as of the date of receipt, by the depositary, of official written notification on fulfilment by the acceding state of all internal procedures, necessary for its entry into force.

684

chapter d

Article 21 Amendments and additions may be introduced into the present Charter by mutual consent of the Parties by means of separate protocols, being an integral part of the present Charter and shall enter into force according to the order envisaged by Article 19 of the present Charter. Article 22 In case of disputes over interpretation or application of the present Charter, the Parties shall settle them through consultations and negotiations. Article 23 No reservations may be made to the present Charter. Article 24 The present Charter shall be subject to registration in the un Secretariat in accordance with Article 102 of the Charter of the United Nations.

part 4 Miscellaneous Documents

∵

Introduction The last three documents don’t fit into the above mentioned categories and have diverse characteristics. Two of the documents derive from the International Conference of New or Restored Democracies (icnrd). This process began in 1988 under the initiative of President Corazon C. Aquino of the Philippines, after the so-called peaceful “People Power Revolution” had ousted Ferdinand Marcos, who ruled his country as a dictator from 1965 to 1986. Initially, icnrd developed into a tripartite structure with participation of governments, parliaments and civil society. The sixth conference of 2006 reinforced this structure and concluded with a Declaration and Plan of Action, which reaffirmed the fundamental principles and values of democracy (→ Doc. 108). Following the 6th International Conference it was decided to promote an International Day of Democracy. This led to un General Assembly resolution 62/7 (2007), which states in paragraph 6: “The General Assembly, [d]ecides, with effect from its sixty-second session, to observe on 15 September of each year the International Day of Democracy, which should be brought to the attention of all people for its celebration and observance.” Furthermore, the un General Assembly encouraged all governments to strengthen national programmes devoted to the promotion and consolidation of democracy. At the suggestion of the ipu, 15 September was chosen, this being the date of the “Universal Declaration on Democracy” (→ Doc. 27). Last but not least, the “Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations and Code of Conduct for International Election Observers” (→ Doc. 109) was included into part four. This document serves as a benchmark when considering the integrity of international election observation.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004274624_014

688

Miscellaneous Documents

107 Ulaanbaatar Declaration – International Conference of New or Restored Democracies – 5th International Conference Adopted by the International Conference of New or Restored Democracies, Ulaanbaatar (Mongolia), 12 September 2003 Democracy, Good Governance and Civil Society i. We, the Governments and representatives of nations around the world gathered at the 5th International Conference of New or Restored Democracies; ii. Declaring that democratic governance is legitimate and responsive, representative and participatory, transparent and accountable, and rights and law based. While it empowers, it offers checks and balances on authority to prevent abuse and enhances the promotion and protection of human rights, gender equality, and respect for the rule of law. We will endeavour to ratify, accept, or accede to the international human rights and international humanitarian law instruments; iii. Democracy provides legitimacy to governments by rooting their actions in the will of the governed, builds greater success for national programs by engaging the energies of the governed, increases the potential for long-term sustainable economic development, and fosters human security by providing avenues for dissent to be expressed in legitimate, non-violent forms; iv. Declaring further that the full, active and unobstructed participation of civil society, as they employ democratic and non-violent means, is essential for democratic governments to always remain responsive to the people’s needs and wishes, including between elections; v. Recognizing that new or restored democracies are today facing many challenges brought about by both national and international forces. Democracy has advanced rapidly in the last thirty years in many countries but we have also witnessed instances where democratic structures have come under direct threat by internal or external destabilisation forces of a military, political or economic nature; vi. Recognising further that new or restored democracies also face the challenge of consolidating their sovereignty, their democratic achievements, of making democracy itself an irreversible process, and of ensuring that all members of society benefit from the democratisation process and are able to participate fully in the new systems of governance; vii. Recalling that fifteen years have passed since the first International Conference of New or Restored Democracies (icnrd) and that in these years democracy has developed and consolidated in many new and restored democracies, while some others have experienced failures due, inter alia, to armed

107 Ulaanbaatar Declaration

689

conflicts or the undermining effect of organised crime, terrorist acts or repression; viii. Recalling further that in the intervening period we have witnessed a rise in international terrorism. We fully support the increasing international efforts to address it. We reiterate our condemnation of all acts, methods and practices of terrorism, in all its forms and manifestations. In this regard, we underline the need to take the necessary steps to enhance international cooperation to prevent and combat terrorism, including measures that address factors that foster and sustain extremism and violence. Such efforts should comply with their obligations under international law, in particular international human rights, refugee and humanitarian law; ix. Recognizing also the foregoing challenges, and in the spirit of solidarity and cooperation, desiring to open up a path for further strengthening the global democratic movement by the consolidation of new or restored democracies, as well as supporting other states in introducing democratic reforms for the benefit of all members of society. Democracy should be rooted in the Constitution of the State to provide permanency and a legal foundation; x. Reaffirming the principles and commitments as endorsed in: – The Manila Declaration adopted in June 1988 at the First International Conference of New or Restored Democracies; – The Managua Declaration and plan of action adopted in July 1994 at the Second International Conference of New or Restored Democracies; – The Final Document of Bucharest entitled “The review of the situation and recommendations” adopted in September 1997 at the Third International Conference of New or Restored Democracies; and – The Cotonou Declaration adopted in December 2000 at the Fourth International Conference of New or Restored Democracies; xi. Recognising further that: – Democratic societies have certain qualities which we consider superior to others, particularly those concerned with their participatory, ­representative and equitable nature; – Democracy, development and respect for human rights and of fundamental freedoms are interdependent and synergic; and – Democracy is an ongoing process; xii. Dedicate our efforts to help new and restored democracies to both consolidate and deepen democracy in new or restored democracies; xiii. Endorse the following principles and agree to work towards implementing them in accordance to international, regional and national Plans of Action adopted in pursuance to this conference;

690

Miscellaneous Documents

xiv. Reaffirm our full adherence to the purposes and principles of the Charter of the United Nations and underline our commitment to strengthen the United Nations as the principal international multilateral forum. I A Democratic Society is a Just and Responsible Society 1 A just and responsible society cannot tolerate poverty and will work towards eliminating inequality and promoting equality of opportunities in our societies. 1a We will endeavour to promote sustainable development and economic growth from which all members of our respective societies will benefit. 1b We will strive to ensure access to all members of society basic services, including health care, education, clean water supply, basic sanitation and affordable energy and communications. 1c We will endeavour to ensure that globalisation does not have a negative but a positive effect on the poor, rural, or unskilled members of society. 2 A just and responsible society provides safety nets to the marginalised in society, with the assistance, if needed, of the international community. 2a We will endeavour to reskill workers who are made redundant as a result of economic reform or technological changes. 3 A just and responsible society prioritises sustainable development. 3a We undertake to address the urban/rural divide in the delivery of development services, and prioritise rural development. 3b We undertake to address, with urgency, environmental problems. 3c We exert our efforts to help achieve the Millennium Development Goals. 4 A just and responsible society is committed to human security and human development. 4a We undertake to promote human security and human development to achieve cultural, economic, social, and political progress. 4b We uphold political freedom and participation as important for human security and human development and reaffirm that fundamental aspects of human security and human development, including investing in education and health, increasing people’s safety from the threat of violence, promoting equitable economic growth, and ensuring participation through democratic governance are mutually reinforcing principles leading to a better future for our societies. 4c We undertake to incorporate in our respective national development strategies the above fundamental principles of human security and human development.

107 Ulaanbaatar Declaration

691

II A Democratic Society is an Inclusive and Participatory Society 5 An inclusive and participatory society must provide access and ensure participation of its citizens in the national decision-making process. 5a We will endeavour to adjust our institutions to better serve the goals of democracy. 5b We will endeavour to strengthen representative democracy – parliamentary and electoral systems. 5c We undertake to take all possible measures to encourage the full participation of women in the electoral process and increased representation of women at all levels, including legislatures. 5d We will pursue, where necessary, electoral reforms with the participation of political parties and other relevant segments of civil society to uphold the principle of holding free, fair and periodic elections. 5e We undertake to strengthen our electoral systems by ensuring independence of electoral bodies, monitoring electoral campaigns and processes by independent experts, and transparency of campaign contributions. 5f We will endeavour to continue the consolidation of democratic multiparty systems in our societies to increase participation and representation of the people. 5g We are committed to creating favourable conditions including a strong legal framework for the development of political parties and their engagement in political developments, elections, and responding to the interests of society. 5h We will build mechanisms to give people better access to their members of parliament. 5i We will take all possible measures to legislate only after proper consultations. 5j We will endeavour to strengthen democracy at the local level. 5k We will take measures to broaden electoral participation to encompass all sectors of our respective societies, particularly our citizens living abroad or overseas. 6 An inclusive and participatory society addresses the interests and concerns of people belonging to ethnic and other minorities. 6a We undertake to keep an open dialogue with people belonging to minority groups to improve their situation. 6b We undertake to ensure people belonging to minorities are well and truly represented in all the national institutions, and where this is not possible, to be regularly consulted.

692

Miscellaneous Documents

7 An inclusive and participatory society values and implements compromise and accommodation as they facilitate the resolution of societal conflicts and promote stability of democracies. 7a We commend achievements of democracy through compromise and accommodation as a universal means to mitigate conflicts, promote stability, and harness the creative energies of the people for common causes. 8 An inclusive and participatory society needs to foster national belongingness for all members and groups in society. 8a We will endeavour to promote national unity and identity within all groups of society. 9 An inclusive and participatory society encourages education on democratic values and informs its members on their democratic rights and freedoms, as part of their efforts in consolidating their democracy. 9a We will endeavour to initiate or facilitate the development of national  education programmes, or to encourage the appropriate authorities to do so, to improve knowledge of basic democratic values and human rights. III A Democratic Society Promotes and Protects the Rights and Freedoms of all its Members 10 A democratic society promotes and protects the rights and freedoms of all its members providing instruments of redress for cases of breach of rights and abuse of power. 10a We undertake to set up and strengthen national institutions and mechanisms to ensure that basic democratic principles and human rights are fully respected and guaranteed. 10b We undertake to bring to justice, within existing national legal frameworks, any person, irrespective of status or position, who commits a breach of human rights or abuse of power. 11 A democratic society that promotes and protects the rights and freedoms of all its members protects those who work towards ensuring that such rights and freedoms are fully respected. 11a We undertake to secure an environment conducive to the activities of Human Rights defenders in line with existing Human Rights instruments. 12 A democratic society protects vulnerable people. 12a We undertake to address issues related to protection of children, women, the aged, and people with disabilities from abuse, especially during armed conflict. 12b We undertake to address issues related to the empowerment of women and youth.

107 Ulaanbaatar Declaration

693

12c We undertake to address issues related to the empowerment of ­children, the aged and people with disabilities. IV A Democratic Society is an Open and Transparent Society 13 An open and transparent society encourages the free creation, pursuit and flow of information. 13a We undertake to make any legal reforms necessary to ensure the freedom of all types of media – print, broadcast and Internet. 13b We undertake to ensure that, while guaranteeing media freedom, we protect individuals, organisations and institutions from abuse. 13c We undertake to give all people access to new information technologies. 14 An open and transparent society elicits the effective participation of civil society in local, national and international institutions and processes. 14a We undertake to engage in regular and active dialogue and consultation with civil society organisations as our partners in our democratic development. 14b We undertake to provide legislative and regulatory framework and foster an enabling environment for civil society organisations to develop. We shall promote partnerships between civil society and government. To that end we undertake to involve broadly civil society in decision making processes at local and national levels. 14c We undertake to serve our citizens by providing more information on government policies and programmes, and by considering the benefit of access to information legislation and systems, if not already in place. V A Democratic Society Functions under Agreed Rules of Law and Accountability Regardless of the Challenges It May Face 15 A society that functions under agreed rules of law and accountability condemns all types terrorism as a crime and a threat to peace and security at both national and international level, and democratic governance. 15a We undertake to ensure that, while fighting terrorism, we will work to promote and protect human rights and fundamental freedoms as they are guaranteed by international and national legal instruments. We undertake to ensure due process to those who are charged with terrorism. We support the efforts being made by the international community under the auspices of the United Nations to address the issues of terrorism, and express the hope that the process will be accelerated. 15b In the framework of our struggle against terrorism we undertake to promote democracy, human rights, good governance, development, and the rule

694

Miscellaneous Documents

of law as important in creating just, equitable, stable and secure societies. 15c In the framework of our struggle against terrorism we undertake to work together to strengthen international law in order to enhance the fight against all types of terrorism and ensure a peaceful resolution of international and national conflicts. 15d We undertake to create and integrate, where necessary, mechanisms of conflict prevention and consensus-building in our societies. 16 A society that functions under agreed rules of law and accountability cannot tolerate violent and/or military insurgencies against a democratically elected government. 16a We undertake to provide civilian control over military, paramilitary and police forces to ensure they protect democracy and constitutionality and through their actions do not undermine democratically elected regimes. 16b We undertake to deal with insurgents against democratically elected governments in a lawful and constitutional manner. 17 A society that functions under agreed rules of law and accountability cannot tolerate abuse of power and corruption. These elements undermine democracy as they erode the people’s trust in democratic governance. 17a We undertake to promptly address any challenges to the separation of powers. 17b We undertake to strengthen the safeguards for ensuring independence, impartiality and professionalism of the judiciary. 17c We undertake to adjust, reform or reinvigorate systems and procedures to eliminate corruption and introduce accountability measures when trust is breached. 17d We undertake to encourage the investigation of allegations of abuse of power and corruption. VI Democratic Societies Show Solidarity toward Others 18 Encourage and assist other states in making the often difficult transition to democracy. 18a Share experiences, lessons and best practices on the adoption of democracy and democratic institution building. 18b Support multilateral organisations in their efforts to promote and strengthen democracy. 19 We take note of the outcome of the Seoul Conference of the Community of Democracies, held in November 2002 and encourage the two fora to work closely together in the pursuit of the common goal of developing and deepening democracy throughout the world.

107 Ulaanbaatar Declaration

695

20 We believe that democratic societies are better able to achieve the Millennium Development Goals as they are inherently and fundamentally participatory and representative. The more affluent democratic states need to assist new and restored democracies in meeting their development goals for the benefit of all people living in democratised developing countries as this ensures stability and thus the success of the democratisation process. 20a Assist new and restored democracies achieve their Millennium Development Goals. 20b Assist new and restored democracies in realising commitments undertaken in regional and international fora. 21 We express our appreciation and gratitude to the governments of the Philippines, Nicaragua, Romania, Benin and Mongolia, as well as to the United Nations and individual donor countries, for having made the five International Conferences of New or Restored Democracies possible. We call upon the United Nations General Assembly and upon its member states to examine the possibility of providing further support to the icnrd conferences, organised in cooperation with the United Nations. 22 The participants have expressed their deep gratitude and high appreciation to the people and the Government of Mongolia for successfully holding the Fifth International Conference of New or Restored Democracies. They have recognized that after thirteen years of the peaceful transition to a democracy and market economy Mongolia has made significant progress in promoting and consolidating democratic values.

696

Miscellaneous Documents

108 International Conference of New or Restored Democracies – Doha Declaration – 6th International Conference – Excerpts Adopted by the International Conference of New or Restored Democracies, Doha (Qatar), 31 October 2006 (6th session)

Building Capacity for Democracy, Peace and Social Progress

Introduction PP1 We, the ministers and other representatives of Governments around the world gathered at the Sixth International Conference of New or Restored Democracies at Doha, Qatar, on 29 October – 1 November 2006, are determined to adhere to the universal relevance of democratic values, principles and standards, to work together to consolidate and strengthen democratic institutions, and to enhance the linkages between democracy, peace and social progress in the ongoing international dialogue on development, Preamble and Principles PP2 Recognizing that a large number of the States in the world are now participating in the International Conferences of New or Restored Democracies and are working together with a host of parliamentarians, international organizations and a large number of non-governmental organizations active in the field of democracy from around the world, PP3 Recalling, inter alia, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, PP4 Recalling also the Declaration on Social Progress and Development, the Vienna Declaration and Programme of Action, the Copenhagen Declaration on Social Development and the Millennium Declaration, PP5 Emphasizing that everyone is entitled to all the rights and freedoms recognized in the Universal Declaration of Human Rights without distinctions of any kind, PP6 Renewing our conviction that democracy, sustainable development, peace and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing, and that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives,

108 DOHA DECLARATION

697

PP7 Committed to advancing human welfare, freedom and progress everywhere, as well as to encouraging tolerance, respect, dialogue, and cooperation among different cultures, civilizations and peoples, PP8 Reaffirming that strict adherence to the principle of non­discrimination, including in respect to persons belonging to national or ethnic, religious and linguistic minorities is one of the pivotal elements of democracy, […] PP10 Acknowledging further that interfaith dialogue and cooperation plays a vital role in promoting democracy, […] PP13 Considering the need to develop home-grown democratic reforms to be pursued taking into account the distinctive cultures and traditions of each society while conforming with the spirit and principles of relevant international instruments, PP14 Recognizing the richness and diversity of democratic political systems and models of free and fair electoral processes in the world, based on national and regional particularities and various backgrounds, PP15 Reaffirming the right of peoples to determine methods and to establish institutions regarding free and fair electoral processes and, consequently, that there is no single model of democracy or of democratic institutions and that States should ensure all the necessary mechanisms and means to facilitate full and effective participation in those processes, PP16 Sharing the resolve to jointly cooperate to discourage and resist the threat to democracy posed by the overthrow of constitutionally elected governments, PP17 Reaffirming the respect for sovereignty and the principle of non-interference in domestic affairs as provided in the Charter of the United Nations, […] PP19 Noting with satisfaction the momentum towards democratic governance in various countries of the Middle East, while concerned that continuing inter-state armed conflicts and violence have jeopardized the prospects for a Middle East peace and further democratization, PP20 Reaffirming that the inalienable right of all peoples to self-determination is essential to peace, democracy and social justice, […] PP22 Cognizant that the concept and parameters of democracy encompass economic, social, cultural as well as political dimensions and that an important aspect of development policy is the relationship between economic and

698

Miscellaneous Documents

social development on the one hand and democracy, human rights and responsive governance on the other, OP1 Reaffirms that the International Conferences of New or Restored Democracies1 over the past eighteen years since 1988, have enhanced the international dialogue on concepts and principles of democracy and strengthened international cooperation among new and restored democracies with a view to consolidating the integration of democracy, peace and development, OP2 Reaffirms also the numerous recommendations emanating from the International Conferences on New or Restored Democracies, including, inter alia, those that address structural vulnerabilities of democracy, the fundamentals of good governance, the creation of a suitable political culture, the protection of human rights, the relationship between democracy, peace and development, enhancing the rule of law, improving accountability and transparency in democratic structures of government, the establishment of free and independent media, etc., OP3 Encourages the promotion of a democratic culture, the building of institutions for democracy, the affirmation of common principles and interests in the pursuit of democratization, among others, necessitate the development of core skills and capabilities in order to identify and address the challenges confronting new and restored democracies, OP4 Recognizes the necessity of creating an enabling environment which requires the consolidation and strengthening of democratic institutions, supporting the adherence to common democratic values, principles and standards and the development of appropriate policy and legal frameworks, OP5 Notes with satisfaction that to date, as a result of the deliberations since 1988, we have witnessed greater awareness of the issues related to the promotion of democracy, the advance in the promotion of the topic in the context of peace and development, the ever-increasing recognition of the importance of supporting new or restored democracies and bringing positive changes in the democracy realm, OP6 Stresses that the need for systematic implementation of icnrd’s recommendations requires the establishment of follow-up steps, OP7 The Conference requests the Chair of icnrd-6 to take the necessary measures to guarantee appropriate implementation and follow up of the ­recommendations of the icnrd Conferences, […] 1 The first Conference in Manila, the Philippines in 1988; The second Conference in Managua, Nicaragua in 1994; The third Conference in Bucharest, Romania in 1997; the fourth Conference in Cotonou, Benin in 2000; The fifth Conference in Ulaanbaatar, Mongolia in 2003.

108 DOHA DECLARATION

699

OP9 Stresses the importance of more democratic decision-making at the global level, OP10 Encourages consultation and increased cooperation between the Community of Democracies and icnrd to facilitate technical cooperation, including exchange of experiences about specific issues of common interest, OP11 Welcomes the establishment of the United Nations Democracy Fund by the Secretary General as well as the support provided to it by Member States and civil society organizations and invites all relevant actors to make use of this strategic and flexible new instrument to further democracy-building efforts, OP12 Recognizes that peace building constitutes an important dimension of democracy building and appeals to Member States to contribute to the Peace Building Fund established by the United Nations Secretary General, […]

700

Miscellaneous Documents

109 Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations and Code of Conduct for International Election Observers Initiated by the Global Network of Domestic Election Monitors (gndem) and facilitated by the National Democratic Institute (ndi), commemorated 3 April 2012 at the United Nations, New York, endorses by the Venice Commission at its 91st Plenary Sessions, 15–16 June 2012, 91st Plenary Session – cdl-AD (2012)018 1 Declaration of Global Principles for Non-Partisan Election Observation and Monitoring by Citizen Organizations Preamble Genuine democratic elections are the peoples’ collective expression of sovereignty and an inalienable right of citizens. These precepts are recognized in national constitutions the world over and in international human rights instruments of the United Nations, regional intergovernmental organizations and other bodies. The Universal Declaration of Human Rights Article 21 states that: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.” Article 25 of the International Covenant on Civil and Political Rights (iccpr, a treaty among 165 countries at this date) states that: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [that is, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: … To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; ….” The election related rights set forth and opportunities called for in those two articles are based on their explicit recognition that every citizen has the right to take part in government and public affairs, either directly or through freely chosen representatives. Non-partisan election observation and monitoring by citizen organizations has emerged as one of the most tangible and significant dimensions of democratic development around the globe. In more than 90 countries on five continents over the last two decades, millions of citizens have joined non-partisan election observation and monitoring efforts to ensure electoral integrity and

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 701

promote accountability in government and among political contestants. This has contributed to safeguarding genuine elections, mitigating potentials for conflict, and promoting accountability and democratic development. Non-partisan observation and monitoring of elections by citizen organizations is part of participating in public affairs, which “relates to legislative, ­executive and administrative powers” and “covers all aspects of public administration, and the formulation and implementation of policy….” (unhrc General Comment 25, paragraph 5.) Non-partisan election observation and monitoring by citizen organizations exercises the right of association that is central to the functioning of nongovernmental organizations, as well as the right to seek, receive and impart information that is vital to transparency and is included in the freedom of expression protected by Articles 19 of the Universal Declaration of Human Rights and the iccpr. Establishing an election process that is open to citizen examination is essential because citizens not only have the right to genuine elections, they have the right to know whether the election process provided an opportunity for free expression of the will of the electors and accurately recorded and honored the electors’ will. Non-partisan citizen election observers and monitors can be considered as specialized human rights defenders focused on civil and political rights, which are central to achieving genuine elections. Genuine elections require respect for the exercise of human rights and fundamental freedoms, including association, peaceful assembly, expression, media freedom, movement, security of person, equal protection of the law for prospective voters and those seeking to be elected, as well as providing effective remedies when electoral related rights are violated. These electoral related rights and freedoms, and related rule of law issues, are affected by a range of institutions and processes over a lengthy period of time that makes up an election cycle and are woven into the fabric of each country’s political process and historical context. At the same time, elections allow citizens to aggregate their interests to demand that those seeking office address issues related to economic, social and cultural well being, as well as peace and security. Genuine elections therefore are not only a condition to establishing democratic governance; they are inseparable form broader democratic development. With the exercise of rights comes responsibilities, and non-partisan domestic election observers and monitors have an ethical obligation to conduct their activities in a responsible manner. Various international publications and the charters of individual domestic non- partisan election observation and monitoring organizations and their cross-border networks emphasize that nonpartisanship requires impartiality, accuracy and professionalism.

702

Miscellaneous Documents

Non-partisan election observation and monitoring by citizen organizations requires the highest ethical standards for impartiality and accuracy based on credible methodologies that incorporate best practices that are suitable to national conditions. Non-partisan election observation and monitoring seeks to enhance electoral integrity by deterring and exposing irregularities and fraud, deterring and mitigating potentials for election-related violence and by offering recommendations for improving electoral and political processes. It seeks to promote public confidence as the election process warrants and to promote citizen participation in government and public affairs through electoral processes that are free of proscribed discrimination and unreasonable restrictions. Non-partisan election observation and monitoring by citizen organizations seeks to cooperate with election management bodies and other governmental authorities related to election processes and makes observations, assessments and findings based on the national legal framework and obligations concerning democratic elections that are set forth in international human rights instruments, as well as standards, principles and commitments presented in international and regional charters, conventions, declarations and other such documents. The quality of an election process typically reflects the democratic character of governance leading to an election and can be an important indicator of the nature of government that results from an election. The skills and networks developed in non-partisan election observation and monitoring have allowed citizens across the globe not only to sustain their on-going electoral integrity activities, but also to strengthen and expand their monitoring, advocacy and accountability efforts to promote representative, transparent and accountable democratic governance. Therefore: Recognizing that non-partisan election observation and monitoring is a growing trend around the world, reaching thus far over 90 countries on five continents and mobilizing millions of citizens to participate in public affairs, Acknowledging that non-partisan election observation and monitoring by citizen organizations can be considered as a specialized form of human rights defending that focuses on civil and political rights, which are central to achieving genuine elections, the rule of law and democratic governance, Noting that non-partisan election observation and monitoring by citizen organizations can contribute significantly to deterring and mitigating potentials for election related violence, and that activities by non-partisan election observation and monitoring organizations can contribute significantly to improving the democratic quality of legal frameworks for elections, the conduct of election processes and broader democratic development,

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 703

Appreciating that election management bodies and other government authorities have the crucial responsibility to organize genuine democratic elections, that political parties and candidates have a right to seek to be elected, that citizens have the right to vote and to participate fully in election and political processes and that non-partisan election observation and monitoring by citizen organizations has a distinct role to play in the independent scrutiny of electoral processes, Affirming that the conduct of non-partisan election observation and monitoring creates responsibilities to other citizens, including prospective voters, those seeking to be elected and those responsible for administering election processes and those charged with adjudicating electoral disputes, Emphasizing that genuine democratic elections provide the means to resolve peacefully the competition for political power and provide the basis for citizens to express their will as to who shall have the authority to govern, as recognized in Article 21 of the Universal Declaration of Human Rights and Article 25 of the iccpr, Appreciating that the United Nations Human Rights Committee (unhrc) in General Comment 25, paragraphs 5, 8, and 20, has declared to the 165 state parties to the iccpr that the right to participate in public affairs is a broad concept whereby citizens take part through public debate, dialogue and their capacity to organize themselves, and the Committee has affirmed that: “There should be independent scrutiny of the voting and counting processes…so that electors have confidence….” that their elections are genuine, Affirming that independent scrutiny of election administration, and the other processes surrounding elections, encompasses non-partisan observation and monitoring of elections by citizen organizations, which is distinct from judicial review and scrutiny by political parties, candidates or their agents, Acknowledging that the charters, conventions, declarations and other instruments of regional intergovernmental organizations, as well as documents of nongovernmental organizations, also recognize the right to genuine democratic elections and that a number of instruments explicitly support non-partisan election observation and monitoring by citizen organizations, including, for example, paragraph 8 of the ocse’s 1990 Copenhagen Document and paragraph 22 of the 2007 African Charter on Democracy, Elections and Governance, and Recognizing that many of the principles of non-partisan election observation and monitoring by citizen organizations are common to those of international election observation set forth in the 2005 Declaration of Principles for International Election Observation, which has been endorsed as of this date by 35 intergovernmental and international nongovernmental organizations and

704

Miscellaneous Documents

which was recognized with appreciation by the United Nations General Assembly (A/Res/64/155; 8 March 2010), and therefore adopting paragraphs 1 through 3 of that declaration as paragraphs 1 through 3 of this declaration and otherwise noting harmony between the two declarations, The organizations endorsing this Declaration of Global Principles for Nonpartisan Election Observation and Monitoring by Citizen Organizations and the accompanying Code of Conduct for Non-partisan Citizen Election Observers and Monitors hereby join to declare: Genuine Democratic Elections 1. Genuine democratic elections are an expression of sovereignty, which belongs to the people of a country, the free expression of whose will provides the basis for the authority and legitimacy of government. The rights of citizens to vote and to be elected at periodic, genuine democratic elections are internationally recognized human rights. Genuine democratic elections are central for maintaining peace and stability, and they provide the mandate for democratic governance. 2. In accordance with the Universal Declaration of Human Rights, the iccpr and other international instruments, everyone has the right and must be provided with the opportunity to participate in the government and public affairs of his or her country, without any discrimination prohibited by international human rights principles and without any unreasonable restrictions. This right can be exercised directly, by participating in referenda, standing for elected office and by other means, or can be exercised through freely chosen representatives. 3. The will of the people of a country is the basis for the authority of government, and that will must be determined through genuine periodic elections, which guarantee the right and opportunity to vote freely and to be elected fairly through universal and equal suffrage by secret balloting or equivalent free voting procedures, the results of which are accurately counted, announced and respected. A significant number of rights and freedoms, processes, laws and institutions are therefore involved in achieving genuine democratic elections. Non-partisan, Independent Scrutiny of Electoral Processes 4. Non-partisan election observation and monitoring by citizen organizations is the mobilization of citizens in a politically neutral, impartial and non-discriminatory manner to exercise their right of participation in public affairs by witnessing and reporting on electoral developments through: independent, systematic and comprehensive evaluation of legal frameworks, institutions,

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 705

processes and the political environment related to lections; impartial, accurate and timely analysis of findings; the characterization of the findings based on the highest ethical standards for impartiality and accuracy; the offering of appropriate recommendations for obtaining genuine democratic elections; and advocating for improvements in legal frameworks for elections, their implementation through electoral related administration and removal of impediments to full citizen participation in electoral and political processes. 5. Non-partisan election observation and monitoring by citizen organizations is impartial towards all political parties, candidates and those in favor of or opposed to any issue or initiative presented in a referendum. It is politically neutral and concerned with electoral outcomes only in determining the degree to which they are the result of a genuinely democratic process and are reported transparently, accurately and in a timely manner. 6. Non-partisan election observation and monitoring by citizen organizations seeks to work in cooperation with election management bodies, other governmental agencies and other electoral stakeholders and does not obstruct election processes or officials, electoral contestants or voters. Non-partisan citizen election observation and monitoring organizations should meet with electoral and other governmental authorities and other electoral stakeholders to seek, receive or provide information and to offer recommendations for improving electoral and political processes. 7. Non-partisan election observation and monitoring by citizen organizations is independent of government, including electoral authorities, and is conducted for the benefit of the people of a country in order to promote and safeguard the right of citizens to participate in government and public affairs directly or through freely chosen representatives elected in genuine democratic elections. 8. Non-partisan election observation and monitoring organizations should be transparent about their funding and must not accept funding from any source or upon any condition that creates a conflict of interest that would hinder the organization from conducting its monitoring activities in a nondiscriminatory, impartial, accurate and timely manner. No one should be allowed to be a nonpartisan citizen election observer or monitor unless she or he is free from any political, economic or other conflicts of interest that would hinder that person from conducting her or his election observation and monitoring activities in a nondiscriminatory, impartial, accurate and timely manner. 9. Non-partisan election observation and monitoring by citizen organizations gathers systematically when practicable and always evaluates impartially information concerning all elements of an electoral process, including factors that may affect the overall electoral environment. This may be done through

706

Miscellaneous Documents

comprehensive non-partisan observation and monitoring by one citizen organization, a coalition of organizations or coordinated efforts of organizations, and it may be done through the efforts of several organizations operating more or less independently of each other, including those that choose to examine a particular process or element of the election cycle through specialized nonpartisan monitoring techniques. In order to avoid confusion about observation and monitoring findings and unnecessary duplication of efforts, non-partisan election observation and monitoring by citizen organizations should seek to achieve the highest degree of cooperation and potentials for coordination that are appropriate to the national circumstances. 10. The decision by citizen organizations to observe and/or monitor an election or any element of it does not indicate that the organizations either presume the election process to be credible or to lack credibility; non-partisan election observation and monitoring by citizen organizations seeks to evaluate the process and its elements accurately, impartially and as systematically as practicable in order to properly characterize processes according to national legal requirements and applicable international obligations and commitments. Non- partisan citizen election observation and monitoring organizations should make every effort to ensure that their activities are not interpreted as legitimizing a clearly undemocratic electoral process, including making public statements to prevent such misinterpretations; this includes terminating observation and monitoring activities where necessary and stating publicly the basis for that action. 11. Organizations endorsing this Declaration recognize that substantial progress has been made internationally, including through regional organizations, international nongovernmental organizations and scholarly pursuits, in establishing standards, principles, obligations, commitments and best practices concerning genuine democratic elections; organizations endorsing this Declaration commit themselves to become familiar with and use such benchmarks to best inform their analysis, conclusions, characterizations and recommendations, and they pledge to be transparent concerning the benchmarks they use in their observation and monitoring activities. 12. Non-partisan election observation and monitoring by citizen organizations includes the responsibility to issue regularly public reports, statements and releases that are accurate, impartial and timely and that present observations, analysis, findings and recommendations for improving electoral processes. When observation and monitoring is limited to one element or a limited number of elements of an election process, the related public statements should clearly state so. In addition to analyzing impartially reports of direct observations by non-partisan citizen election observers and monitors, non-partisan election observation and monitoring by citizen organizations may draw upon

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 707

credible evaluations of electoral processes conducted by other non-partisan citizen organizations, academics, international organizations and similar sources; where such sources serve as a principal basis for a finding or conclusion the sources should be identified. 13. Non-partisan election observation and monitoring by citizen organizations employs a variety of methodologies and techniques, depending on the aspect of the election process and/or electoral environment being evaluated, and strives to employ the best and most systematic methodologies and techniques, in accordance with established principles and suited to the national circumstances, in order to produce observations, findings, analysis and conclusions that are accurate, impartial and as timely as practicable. 14. Non-partisan election observation and monitoring by citizen organizations may employ statistically based methodologies for evaluating the integrity of pre-election, post- election and election-day procedures, including verifying the accuracy of electoral results through methodologies often referred to as parallel vote tabulations (pvts), quick counts or similar terms. Decisions about the timing of reports, statements and releases, concerning findings and conclusions based on such methodologies must carefully consider the credibility of observer reports, the sufficiency of the information received and the accuracy of analysis of the statistical data, as well as electoral rules concerning the timing of reports. Such reports should include information about statistical samples and margins of error of the findings. 15. Non-partisan election observation and monitoring by citizen organizations can contribute significantly to deterring and mitigating potentials for election related violence and to improving legal frameworks for elections, the conduct of electoral and political processes and broader democratic development. Non-partisan election observation and monitoring organizations therefore have a responsibility, where practicable, to advocate for peaceful electoral and political processes, improvements in legal frameworks for elections and electoral administration, accountability in electoral and political processes, removal of barriers to electoral participation by women, youth, indigenous peoples and other marginalized populations, as well as to promote citizen participation in public affairs. Processes Observed or Monitored and Conditions Required 16. Non-partisan election observation and monitoring by citizen organizations employs in its best practice long-term observation and analysis that address all parts of the election cycle as well as the broader political context that affects the character and quality of elections. Where non-partisan citizen election observation and monitoring organizations can not examine every element of a

708

Miscellaneous Documents

given election process, they should consider the significance of pre-election and post-election factors and place election-day processes in the proper context of the election cycle as well as the related political environment. This is required in order not to over-emphasize election-day developments and thus potentially mischaracterize the nature of the election process. 17. The following are examples of elements of the electoral process that should be evaluated, though it may not be feasible to observe/monitor all of them in a specific election: (a) the content and implementation of the legal framework, made up of the constitution, laws, treaty obligations and other international commitments, rules and regulations relating to elections; (b) the impartiality, transparency and effectiveness of electoral administration and related governmental activities; (c) the processes for appointing and retaining members of election management bodies; (d) the delimitation of election district boundaries; (e) the registration of political parties, candidates and referendum initiatives and their qualification for the ballot; (f) the compliance of political parties with legal obligations and other requirements concerning matters such as selection of candidates, campaigning and upholding codes of conduct; (g) the procedures relating to political party and candidate financing, campaign spending and oversight of both; (h) the incidence of international interference in the electoral process, through proscribed financial contributions to electoral contestants, international media bias or other activities; (i) the use of state resources in the electoral context, including their politically impartial applications and their improper use for the electoral advantage of particular political parties, candidates or supporters or opponents of referendum initiatives; (j) the application of anti-corruption laws and other safeguards in the electoral context, including protections for “whistleblowers” who expose election related corruption; (k) the conduct of security forces and civil servants in administrative matters, such as the issuance of permits and permissions for use of meeting places and locations for peaceful assemblies and campaign activities, such as rallies and marches, as well as the posting of campaign materials; (l) the requirements and practices regarding access to the mass communications media for political parties, candidates and supporters or opponents of referendum initiatives;

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 709

(m) the requirements and practices concerning reporting by state controlled, public and private media about political parties, candidates and supporters or opponents of referendum initiatives, including monitoring the amount and quality of coverage of electoral contestants and coverage of issues that are pertinent to voter choices in elections or referendums; (n) the ability of political parties, candidates and supporters and opponents of referendum initiatives to campaign freely for the support of prospective voters; (o) the ability of prospective voters, including indigenous peoples and other traditionally marginalized populations, to seek and receive (including in minority languages) accurate and adequate information upon which to make electoral choices; (p) the ability of eligible persons to register to vote and have their required information appear accurately on the voter registry and voter lists; (q) the ability of prospective voters, those seeking to be elected and their supporters to be free of violence, intimidation, bribery and retaliation for their electoral choices, including whether effective and equal protection of the law is provided by police, other security forces, prosecutors and courts; (r) the adequacy of voter education, particularly by state agencies, including among other things where, when, how and why to register and to vote, as well as of guarantees for secrecy of the ballot; (s) the appropriateness of locations of polling places and adequacy of their facilities; (t) the production and distribution to polling stations and recollection and storage of ballots and other sensitive election materials; (u) the policy making process and each stage of implementing decisions concerning the use of electronic technologies in creation and execution of voter registries, electronic voting, tabulation of results and other sensitive electoral procedures; (v) the sustainability, appropriateness and cost-effectiveness of electoral technologies; (w) the conduct of voting, including in minority languages, counting, tabulation and announcement of results, including transparency of procedures and adequacy of safeguards against inaccuracies and malfeasance; (x) the conduct of procedures and processes concerning electoral complaints and challenges by citizens, prospective voters, those seeking election and those supporting or opposing referendum initiatives, including the provision of effective remedies for violations of electoral related rights;

710

Miscellaneous Documents

(y) the conduct of administrative, civil and criminal processes concerning alleged violations of laws and regulations regarding electoral related rights and responsibilities, including application of appropriate penalties; and (z) the development of changes to electoral related laws, rules, regulations and administrative procedures preceding and following elections. 18. In order for non-partisan election observation and monitoring by citizen organizations to be conducted successfully, several conditions should be present, including, among others: (a) security conditions allow non-partisan citizen observers and monitors to evaluate processes without substantial risk to their safety, the safety of their families or their economic well being; (b) election management bodies and other governmental authorities concerned with electoral related processes honor the right to participate in government and public affairs by providing non-partisan citizen election observation and monitoring organizations access to polling stations and all other election related facilities and processes in the pre-election, election-day and post-elections periods, including by providing accreditation, where it is required for access, in a timely manner, without proscribed discrimination or unreasonable restrictions, such as providing less access than allowed to international election observers, the media or political party and candidate observers; (c) election management bodies and other governmental authorities provide electoral transparency through timely access to information, including election results recorded at polling stations as well as aggregated results at higher levels of electoral administration, and by allowing scrutiny of electoral related activities; (d) political parties, candidates and groups supporting or opposing referendum initiatives provide timely information about complaints they file concerning violations of their electoral rights and the electoral challenges they lodge; (e) non-partisan citizen election observation and monitoring organizations can exercise the freedom to associate with other organizations, both domestic and international, and cooperate with and/or receive assistance and support from them, including financial assistance, in order to pursue non-partisan election observation/monitoring activities; (f) non-partisan citizen election observation and monitoring organizations are free to seek, receive and impart information, domestically and across borders, via verbal communications and printed or electronic media, including the Internet;

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING

711

(g) national and international organizations, agencies, foundations and others that commit to provide funding and/or other assistance for nonpartisan election observation and monitoring by citizen organizations do so in a timely and practical manner that makes it possible in light of national conditions to employ the most systematic election observation and monitoring methodologies practicable and to integrate them into the capacities of the citizen organizations; (h) election management bodies, other governmental authorities, funders and other supporters recognize and honor the premise that the information gathered, analysis performed and conclusions developed by non-partisan citizen election observation and monitoring organizations belong to the respective citizen nonpartisan observation and monitoring organizations, and those organizations are responsible for determining in light of legal requirements the timing and manner for presenting their findings and recommendations. The degree to which these conditions are not present will impact the potential for successful nonpartisan election observation and monitoring by citizen organizations. The lack of adequate security for deployment of observers/ monitors or not being provided accreditation and access to electoral facilities or other factors may prevent systematic scrutiny of election processes. Nonpartisan observation and monitoring organizations may nonetheless decide to partially deploy observers/monitors, gather information from outside polling stations and/or other facilities or otherwise compensate for restrictive conditions, while identifying the restrictions, their causes and probable impact on their activities. Pledges and Commitments 19. In order to more effectively safeguard genuine democratic elections based on universal and equal suffrage and to respect the right to participate in public affairs, the organizations endorsing this Declaration pledge to foster the participation of all segments of the population, including indigenous peoples, national minorities, youth and the equal participation of women, as observers, monitors and leaders of their organizations. 20. Non-partisan election observation and monitoring by citizen organizations should evaluate whether electoral related processes are free of discrimination proscribed by the national legal framework and the country’s international human rights obligations, including whether equality before the law and equal protection of the law is honored in the electoral context, so that universal and equal suffrage of electors and those seeking election are safeguarded. The organizations endorsing this Declaration pledge to include findings and

712

Miscellaneous Documents

recommendations in their reports concerning the participation in election processes of women, youth, indigenous peoples, national minorities and other traditionally underrepresented portions of the population, such as, those with disabilities and internally displaced persons (idps), as well as concerning steps taken by authorities, electoral contestants and other actors to encourage full participation of such groups and/or to remove barriers to their participation, including those affecting voter registration, candidate selection and qualification, voting and receiving accurate and adequate information in minority languages in order to make informed electoral choices. 21. The non-partisan citizen election observation and monitoring organizations endorsing this Declaration commit to: (a) ensure that all of their leaders and participants, including non-partisan citizen observers/monitors, fully understand and pledge to uphold the requirements of impartiality, accuracy and timeliness in all of their election monitoring activities; (b) provide effective training about (i) non-partisanship (including about the substance of this Declaration), (ii) relevant national laws, obligations (including international and regional obligations concerning genuine elections), rules, regulations and procedures, as well as (iii) observation/ monitoring communication protocols and procedures, and (iv) elements of the applicable observation and monitoring methodologies and techniques required for effective non-partisan election observation/ monitoring; (c) require all of their board members, other leaders, staff and volunteer participants, including non-partisan citizen observers/monitors, trainers, organizers and other members, to read, sign and pledge to abide by the Code of Conduct for Non-partisan Citizen Election Observers and Monitors that accompanies this Declaration or an equivalent code of conduct of that specific non-partisan citizen election observation and monitoring organization; (d) cooperate with election management bodies and other government agencies and other electoral stakeholders, respect relevant laws, rules and orders that protect genuine democratic elections and not obstruct election processes or officials, electoral contestants or voters nor conduct any partisan activity to affect the choices that voters may make in an election or referendum; (e) remain independent of government, including electoral authorities, be neutral toward political parties, candidates and those supporting or opposing referendum initiatives, be transparent and not accept funding from any source or upon any condition that creates a conflict of interest

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 713

that would hinder conducting observation and monitoring activities in an impartial, accurate and timely manner for the benefit of the citizenry; (f) employ the best and most systematic election observation and monitoring methodologies and techniques practicable in light of non-partisan principles and national conditions, as well as the elements of the election process being monitored; (g) conduct impartial, fact-based analysis and develop findings and recommendations based on national legal requirements and applicable international and regional obligations, principles, commitments and best practices and be transparent concerning the benchmarks they use in their observation/monitoring activities; (h) issue regularly to the public (including electoral stakeholders) accurate, impartial and timely reports, statements and releases that present fact-base analysis, observations and findings and recommendations to improve electoral processes, including removing inappropriate provisions in laws, unreasonable restrictions and other impediments to achieving genuinely democratic elections; (i) cooperate and coordinate to the highest degree possible in the national circumstances with other non-partisan citizen election observation and monitoring organizations that have endorsed this Declaration and are implementing it in apparent good faith and manner; (j) cooperate with international election observation missions, including regional election observation missions, and others concerned with genuine democratic elections; (k) where practicable, advocate for improvements in legal frameworks for elections and in their implementation, for violence-free, accountable, open and responsive electoral and political processes, for removal of unreasonable restrictions and other barriers to full citizen participation in electoral and political processes and to contribute more broadly to advancing democratic governance; and (l) publicize this Declaration and its accompanying Code of Conduct with other electoral stakeholders and citizens. 22. The non-partisan citizen election observation and monitoring organizations endorsing this Declaration commit to use every effort to comply with the terms and spirit of this Declaration and the accompanying Code of Conduct for Non-partisan Citizen Election Observers and Monitors. Any time that an endorsing organization deems it necessary to depart from any of the terms of this Declaration or the accompanying Code of Conduct, in order to conduct non-partisan election observation/monitoring in the spirit of this Declaration and to meet national conditions, that organization will explain why it was

714

Miscellaneous Documents

necessary to do so in its public statements and will be prepared to answer appropriate questions concerning that decision from other non-partisan citizen election observation and monitoring organizations that have endorsed this Declaration. Endorsements 23. This Declaration and the accompanying Code of Conduct for Non-partisan Citizen Election Observers and Monitors remains open for endorsement by individual nonpartisan citizen election observation and monitoring organizations and regional networks of non- partisan citizen election observation and monitoring organizations. All such organizations and networks shall be noted as “Endorsing Organizations”. 24. This Declaration and the accompanying Code of Conduct may also be endorsed by other organizations that are concerned with or support non-partisan election monitoring by citizen organizations, such as intergovernmental organizations, international nongovernmental organizations and other associations; such organizations shall be noted as “Supporters of the Declaration”. 25. Endorsements should be recorded with the Global Network of Domestic Election Monitors (gndem), or any of the regional networks of non-partisan citizen election observation and monitoring organizations that have endorsed this Declaration and Code of Conduct. Endorsements may also be recorded with the National Democratic Institute (ndi), which facilitated the consensus building process leading to this Declaration and Code of Conduct. When an endorsement is recorded by any of the listed entities, it shall inform the others of it in a timely manner. 2 Code of Conduct for Non-Partisan Citizen Election Observers and Monitors Introduction Non-partisan election observation and monitoring by citizen organizations is increasingly accepted around the world as a standard practice for supporting and safeguarding electoral integrity, promoting public confidence in democratic elections and mitigating potentials for election-related violence. Governments, including their election management bodies, those seeking to be elected and other electoral stakeholders have recognized that non-partisan election observation and monitoring by citizen organizations is an integral part of exercising the right of citizens to participate in government and public affairs, which is an internationally recognized human right. Nonpartisan election observation and monitoring by citizen organizations is noted

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING 715

by intergovernmental organizations and various intergovernmental charters, declarations and other instruments as an important aspect of promoting genuine democratic elections. The purpose of non-partisan election observation and monitoring is to help ensure the integrity of the election process, by witnessing and reporting accurately and impartially on each aspect of the process to evaluate whether it is conducted in an open and transparent manner and in conformance with the national constitution, laws and electoral regulations, treaty obligations and other international commitments concerning democratic elections. Nonpartisan election observation and monitoring by citizen organizations also seeks to ensure the integrity of the election process by calling on all electoral actors (including the candidates, political parties, those supporting or opposing referendum initiatives, election officials, other governmental authorities, mass media and voters) to respect the laws and election-related rights of all citizens and to hold accountable those who violate the law and any persons election-related rights. In addition, non-partisan election observation and monitoring by citizen organizations seeks to mobilize citizens in the exercise of their right to participate in public affairs as non-partisan election observers and monitors and to promote citizen participation more broadly in elections and political processes. Along with the recognition of rights related to non-partisan election observation and monitoring by citizen organizations comes responsibilities. These responsibilities may be outlined in a code of conduct to be adopted, along with a pledge of non-partisanship, by every observation and monitoring organization. Rights and responsibilities of observers and monitors also may be adopted as operating principles of an organization in formats other than codes of conduct. The organizations and networks that endorse the Declaration of Global Principles for Nonpartisan Election Observation and Monitoring by Citizen Organizations subscribe to and follow this Code of Conduct in addition to any similar code of conduct and operating principles of their individual organization or network. Each commits to require that all of its participants, including leaders, staff, trainers, consultants and all observers and monitors adhere to this Code of Conduct, or a substantially identical one of the organization or network, and sign a Non-partisan Election Observation and Monitoring Pledge substantially identical to the one presented below. Modes of Conduct In order to achieve these goals and purposes of non-partisan election observation and monitoring, each organization and network agrees that it will:

716

Miscellaneous Documents

1) Maintain strict non-partisanship, by remaining politically neutral in all activities concerning the election process (including observation, monitoring, voter education, exit polling and any other activities), by refraining from expressing publicly any preference for or against any candidate, political party, group, movement or other association seeking public office, or those supporting or opposing any referendum initiative (including when reporting factually about violations of laws, regulations and electoral rights by parties, candidates or referendum groups), and by rejecting all favors offered or threats issued by any of the political contestants or their agents; 2) Work independently of government in support of a genuine democratic election process, without regard to who wins or loses, and to employ the best practices, methodologies and techniques, in light of non-partisan principles and suited to national conditions, in order to observe and monitor the various elements of the election process throughout the election cycle and the related political environment or to apply best practices, methodologies and techniques to specific elements of the election process; 3) Maintain strict adherence to the principle of nonviolence, call on all involved with the election process to do the same and take any practical steps possible to reduce the potentials for election-related violence; 4) Respect the country’s constitution, laws, regulations and international obligations consistent with holding democratic elections, promote respect for electoral related rights, and call on others involved with the elections to do the same; 5) Respect the roles of impartial election authorities at all levels and at no time interfere unlawfully or inappropriately in the administration of the elections, as well as seek diligently to work in cooperation with impartial election officials, and follow lawful instructions from them or other appropriate authorities concerning protection of electoral integrity; 6) Help to safeguard the rights of voters and prospective voters to exercise their electoral choice freely and without improper discrimination, unreasonable restrictions, interference or intimidation, which includes promoting respect for the secrecy of the ballot, the rights of eligible persons, including women, youth, indigenous peoples, members of national minorities, persons with disabilities and other traditionally marginalized populations, to register to vote, to receive in languages they understand sufficient, accurate information in order to make an informed choice among the political contestants and to engage in other aspects of the election process; 7) Help to safeguard, with strict impartiality, the rights of political contestants to be elected, without improper discrimination or other unreasonable restrictions on their ability to receive legal recognition or to meet other requirements

109 GLOBAL PRINCIPLES FOR ELECTION OBSERVATION AND MONITORING

717

for ballot qualification, on their ability to freely campaign for support of the electorate, on their ability to communicate their political messages to the public or to exercise their rights to association, peaceful assembly and movement, on their ability to monitor all elements of the election process and to seek effective remedies, as well as to enjoy their right to security of person; 8) Cooperate closely with other election observers and monitors from nonpartisan citizen organizations that endorse the Declaration of Global Principles for Non- partisan Election Observation and Monitoring by Citizen Organizations and cooperate with international election observation missions; 9) Report impartially, accurately and timely all observations and findings, both positive and negative, with sufficient documentation of all serious problems to permit verification of the events, and with sufficient documentation of positive aspects of the process to provide an impartial and accurate picture of what took place; and 10) Provide sufficiently high quality training for all observers and monitors to allow them to understand this Code of Conduct, sign the accompanying pledge with full appreciation of its meaning and to provide reports that meet the standards of this Code of Conduct. These 10 points concerning conduct may by modified or supplemented to meet national conditions. Individual election observers and monitors should be required to read and discuss the code and sign a pledge of non-partisanship that embraces the provisions this Code of Conduct. In a case of concern about the violation of this Code of Conduct, the endorsing organization shall conduct an inquiry into the matter. If a serious violation is found to have occurred, the observer/monitor concerned may have her or his observer/monitor accreditation withdrawn or be dismissed from the endorsing organization. The authority for such determinations rests solely with the leadership of the endorsing organization.