OPPD - Democracy Revisited.original

8/3/2019 OPPD - Democracy Revisited.original

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D e m o c r a c y

r e v i s i t e D

Whh Nn f D f

h eU exnl rln?


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O P P D O i c e o r P r o m o t i o no P a r l i a m e n t a r y D e m o c r a c y

DG EXPO European Parliament

Rue Wiertz 60 (Willy Brandt Building 04M061)

B-1047 Brussels, BELGIUM

e-mail [email protected]

tel. +32 (0)2 284 42 29

ax +32 (0)2 284 90 05

h t t p : / / w w w . e u r o p a r l . e u r o p a . e u / o p p d

OPPD Coordinaors: Dick Toornstra and

Thomas Huyghebaert

Research produced by Michael Meyer-Resende,

Democracy Reporting International (DRI) Berlin,

with additional assistance by Jasmin Wisniewska,

assistant at the European University, Viadrina,

Frankurt/Oder.

Manuscrip compleed in Sepember 2009

Brussels, European Parliamen.

The opinions expressed in this document are the sole

responsibility o the authors and do not necessarily

represent the ocial position o the European Parliament.


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D e m o c r a c y r e v i s i t e DWhh Nn f D f h eU exnl rln?


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Execuive Summar 5

1. Inroducion 7

2. Inernaional and Regional Organisaions Eors in Dening Democrac 11

3. Essenial Elemens o a Democrac 17

3.1 Participation in Public Aairs without Discrimination and the Right 17

to Stand and To Vote in Elections

3.2 Freedoms o Expression and Opinion, Association, Assembly 18

3.3 Separation o Powers 19

3.4 The Role o Parliament 20

3.5 The Rule o Law 22

3.6 Pluralistic system o political parties and organisations 23

3.7 Transparency and Accountability 23

3.8 Free Media 25

3.9 Table on Commitments to Democracy by International, Regional 26-27

Organisations and Groupings

4. Poliical Commimens vs. Legal Obligaions 28

5. Conclusion: Wic Noion o Democrac or e EUs Exernal Relaions? 29

Bibliograp 31

Annex - Compilaion o Democrac Commimens b 33

Iner-Governmenal Organisaions

Table o contents


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would also reect the EUs own views. There

are two reasons to reer to defnitions adopted

in the UN. First, using a UN-based defnition o

democracy makes more sense diplomatically.

There is no compelling reason or EU partnercountries to accept a specifc EU defnition;

indeed they may reject it as a unilateral imposi-

tion. In contrast, they cannot easily object to

a defnition originating in the UN. While some

other regional organisations have defned de-

mocracy, they have done so in relation to their

own region, not with a view to external democ-

racy support. Second, the EU has defned the

strengthening o eective multilateralism and

a rule-based international order as a strategic

objective. Engaging in democracy promotion

world-wide based on a UN defnition would be

more in line with these objectives than adopting

a distinct EU defnition.

There is no authoritative defnition o de-

mocracy that claims to include all possible

components o democracy. Indeed, the exact

defnition and scope is an area o some con-

troversy. However, there is an international

consensus on essential elements o democ-

racy. These elements have been best defned in

two resolutions by the UNs General Assembly,

both o which have been adopted by very large

majorities o the UNs member states, with no

objections and only a ew abstentions. These

resolutions are thereore the ideal reerence

The European Union consists o 27 Member

States, each with their own orm o democracy,

shaped by history, culture and circumstance. All

are equally valid, and their individual character-

istics enrich democracy in Europe. The same istrue or democracies in other parts o the world.

Democracy has underpinned the political,

social, cultural and economic development o

the European Union and rom its collective ex-

perience the EU is convinced that it represents

the best orm o government. The development

and consolidation o democracy worldwide has

thereore become a key objective o its Com-

mon Foreign and Security Policy as well as its

Development Cooperation Policy.

For some time now the EU has been discuss-

ing whether it should adopt an ofcial defnition

o democracy as a basis or its democracy

promotion eorts abroad.

This paper argues the opposite, as there are

many available defnitions, emanating rom dier-

ent organisations around the world, which share

many common elements. It may thereore be

advisable or the EU to rely on an existing, com-

prehensive defnition o democracy adopted by

the largest possible group o countries, notably

the UN General Assembly, rather than adopt-

ing its own version. This defnition would not

only have the greatest possible authority, but

Executive Summary


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point or the EUs democracy work abroad.

Those resolutions also very much mirror the EU

views as defned in the Treaties and in various

policies and agreements.

One o the two UN resolutions is dedicated to

democracy promotion by regional organisations

and explicitly includes the ollowing essential

elements o democracy:

Respect or human rights and undamental

reedoms, inter alia, reedom o association

and peaceul assembly, reedom o expres-

sion and reedom o opinion

The right to take part in the conduct o pub-

lic aairs, directly or through reely chosen

representatives, to vote and to be elected at

genuine periodic ree elections by universal

and equal surage and by secret ballot guar-

anteeing the ree expression o the will o the

people

A pluralistic system o political parties and

organisations

Respect or the rule o law The separation o powers and the independ-

ence o the judiciary

Transparency and accountability in public

administration

Free, independent and pluralistic media

In order to strengthen concerted worldwide

actions to promote democracy, the EU could

publicly endorse the UN General Assemblys

defnition as the reerence point o its own

democratisation work. The EU, in its support

to third countries, should ater all enable these

countries to ollow their own specifc path to

democracy.


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government, ederal and non-ederal states,

written and unwritten constitutions, the Execu-

tive drawn rom the Parliament, the Executive

excluded rom the Parliament, and so on. Yet

their citizens and ellow EU members considerall these states democracies, in spite o their

dierences. This suggests that it is not the

ormal nature o the democracy but its practice

that determines its characteristics.1

In 2006 the Policy Unit o the Council Gen-

eral Secretariat presented a discussion paper

on democracy promotion in the EUs external

relations. It claimed that there was a need to

develop a clearer prole, suggesting that a bet-

ter defned, more comprehensive and balanced

approach would be required.

However, this attempt to defne and consoli-

date the EUs democracy assistance agenda,

to defne its meaning and goals, and to identiy

better coordination mechanisms and policies

did not succeed.

A number o changes in geopolitics and

increasing demands on the EU or assistance

in democratisation processes have initiated

renewed thinking on this issue amongst several

recent EU presidencies, notably the French,

Czech and Swedish ones. It seems that the

time is now ripe to strive or a European con-

The Treaties signed in Rome in 1957 estab-

lishing amongst others the European Economic

Community contained no article relating to

democracy or undamental rights. The Treaties

were primarily seen as having a sectoral andmainly economic vocation which did not justiy

the inclusion o an essentially political provision.

It took another 30 years beore a new Treaty,

the Single European Act, came into orce with a

preamble stating that the signatories were de-

termined to work together to promote democ-

racy on the basis o the undamental rights.

In several later texts and policy rameworks,

or example the Copenhagen criteria, the Stabi-

lisation and Association process, the European

Neighbourhood policy, the Cotonou Agreement

or the European Consensus on Development,

this commitment to democracy promotion is

repeated.

Yet the European Union still did not attempt

to explicitly defne democracy or related terms

like democratic governance, democratisation

or even democratic politics.

Within the EU Member States, democracy

takes many dierent orms: constitutional mon-

archies, republics, executive and non-executive

heads o state, unicameral (15) and bicameral

(12) parliaments, centralised and decentralised

Introduction

1. UK Foreign and Commonwealth Ofce, Promoting democratic governance as part o EU CFSP and sustainable development policies, 2008


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to analytical conusion. Chinas one-party-state

has lited millions out o poverty, but this does

not make the country partly democratic.

The EUs dilemma is that any defnition it mayadopt can be rejected by partner states. Why

should they be judged by a standard that the

EU developed unilaterally? Sure, some regional

organisations have adopted democracy defni-

tions, such as the Organization o American

States (OAS) and the Organization or Security

and Co-operation in Europe (OSCE). However,

these are internal defnitions or use in their re-

gions, while the EU looks to defne democracy

in its external dimension, vis--vis other states

and international organisations around the

world. Would it not be more helpul to fnd out

what the world thinks about democracy, and

take that as a base to move orward?

In 2005 the international community, repre-

sented by 172 states, including all EU member

states, approved a UN General Assembly

resolution, which defned essential elements

o democracy. No state voted against it and

only 15 abstained. According to the resolution,

the essential elements are: Respect or human

rights and undamental reedoms, inter alia,

reedom o association and peaceul assembly

and o expression and opinion; the right to take

part in the conduct o public aairs, directly or

sensus on democracy, in other words a cross-

institutional umbrella policy document on what

shape the European approach to democracy

support should take2.

I the EU is eager, as it claims, to oster collab-

oration based on genuine partnerships, it would

be helpul, both in the interest o transparency

and airness towards these partners, to clariy

what Europe means by democracy. This im-

mediately raises the question o whether the EU

should defne its own notion o democracy.

International IDEA, the Stockholm-based de-

mocracy assistance think tank, has published

an insightul study3 on international perceptions

o EU democracy promotion. Many people eel

that the EU should not only emphasise the

procedures o democracy, but also its perorm-

ance, in particular in addressing economic

inequalities. Consequently, the study proposes

a broad understanding o democracy, which

includes the question o economic develop-

ment. However, while it is useul to look at

the nexus between development support and

democracy promotion, the two should not be

mixed together. First, the importance o politi-

cal reedoms goes beyond simply procedures.

They have an intrinsic value, and are not only

a means to achieving better incomes. Second,

too broad an understanding o democracy leads

2. Maria Leissner, Ambassador or Democracy in Development Cooperation, 29 September 2008, Stockho lm.

3. Democracy in Development, Global Consultation on the EUs role in democracy building IDEA, July 2009.


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saer when its in the harbour. But that is not

where ships are meant to be.4

In order to stimulate the debate and help

shape an inter-institutional understanding o theEUs role in democracy promotion, the OPPD

has thereore produced this paper containing a

mapping exercise o existing defnitions and key

elements o democracy.

This paper will highlight and explain these

core elements, arguing that the EU should con-

frm existing commitments and use an existing

defnition o essential elements o democracy

by the UN General Assembly as a reerence

point, rather than re-inventing the wheel and

imposing a new unilateral EU denition on

third countries in its external relations.

A compilation o selected texts o democracy

commitments by the UN and regional inter-

governmental organisations is presented in the

Annex.

Dick Toornstra

Special Advisor or the Promotion

o Parliamentary Democracy

through reely chosen representatives, to vote

and to be a candidate; a pluralistic system o

political parties and organisations; respect or

the rule o law; the separation o powers and

the independence o the judiciary; transparencyand accountability in public administration; and

ree, independent and pluralistic media.

The EU should endorse these essential

elements and make clear that they reect its

understanding o democracy. Given that these

are only essential elements, this would leave

the debate open on whether there are other

elements that make a democracy, a debate

that appears, at present, to be inconclusive.

Other states could not object to a defnition

that they have endorsed previously. Working

with a defnition emanating rom the UN context

would also be in line with the EUs objective o

strengthening multilateralism and a rule-based

international order.

The time has come to move ahead and

translate the core value o the European Union

into a priority in its external relations.

This will not be an easy exercise and there

will be conicting interests to reconcile, but this

should not rerain us rom trying. There is lit-

tle o value in political lie that is accomplished

without taking risks. Some say that a ship is

4. Javier So lana, EU High Representative or the CFSP, Ditchley Foundation lecture, London, 11 July 2009.


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maintain that all these components orm part

o international and regional commitments.

However, such a method would not be satis-

actory or the EUs purposes, because the a

prioridefnition o democracy does not emergerom international commitments and would

thereore not command international authority.5

For example, one could argue that fghting cor-

ruption is an integral part o democratic gov-

ernance and then list a range o international

and regional commitments to fght corruption.

But this would only prove that fghting corrup-

tion is an international commitment, not that it

orms part o an internationally agreed notion o

democracy.

The approach o this study to the meth-

odological problem is an approximation to a

democracy defnition in two steps: First, the

ew explicit defnitions o democracy will be

presented and assessed; second given the

breadth o some o these defnitions hints will

be sought or which components are consid-

ered to be particularlyrelevant or democracy

and thereore orm essential elements o de-

mocracy.

MEthODOLOGy

This report identifes international and re-

gional commitments to democracy. The notion

ocommitments reers to texts with a degree

o international authority, adopted in the rame-

work o inter-governmental organisations, andincludes:

Legal obligations stemming rom treaties,

such as the International Covenant or Civil

and Political Rights (ICCPR)

Customary international law, such as parts o

the Universal Declaration o Human Rights

Political commitments (resolutions, declara-

tions, etc.)

A methodological difculty in the search or

a commonly agreed defnition o democracy is

that only a ew texts explicitly defne democracy.

Instead, democracy is oten mentioned along-

side other concepts, such as human rights, the

rule o law, civil society or good governance,

making it difcult to identiy which components

are essential to democracy.

One approach would be to establish a priori

the components o democracy, or example

based on an academic defnition, and then

5. In addition, there is obviously no agreement in academia on how to defne democracy. Defnitions range rom Schumpeters minimalist

competitive struggle o r peoples votes to a long list o indicators, including social and economic rights and the international dimension o

democracy in the University o Essex/International IDEAs methodology.


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in public administration, and ree, independent

and pluralistic media;7

The UN World Summit outcome document8

o the same year reafrms that democracy isa universal value but that there is no single

model. It stresses however that democracy,

development and respect or all human rights

and undamental reedoms are interdependent

and mutually reinorcing.

It will be argued in the conclusion o this pa-

per that this resolution and the World Summit

outcome paper should be used as the main

reerence points or the EUs promotion o de-

mocracy abroad.

Already in 2001 the UN GA adopted a highly

relevant resolution on promoting and con-

solidating democracy9, which contained all the

elements o the 2005 resolution, albeit without

an operational defnition.

The UN GA resolution o 2005 echoed an

earlier defnition by the UN Human Rights Com-

mission10, which declared in 2003:

that the essential elements o democracy

include respect or human rights and unda-

Some United Nations declarations and resolu-

tions defne or explain the notion o democracy.

The UN General Assembly (GA) stated in its

2000 Manila declaration:that democracy is based on the reely ex-

pressed will o the people to determine their

own political, economic, social and cultural sys-

tems and on their ull participation in all aspects

o their lives.6

The most relevant attempt by the UN GA to

defne democracy may have been a 2005 reso-

lution declaring that:

() the essential elements o democracy in-

clude respect or human rights and undamental

reedoms, inter alia, reedom o association and

peaceul assembly and o expression and opin-

ion, and the right to take part in the conduct o

public aairs, directly or through reely chosen

representatives, to vote and to be elected at

genuine periodic ree elections by universal and

equal surage and by secret ballot guarantee-

ing the ree expression o the will o the people,

as well as a pluralistic system o political parties

and organisations, respect or the rule o law,

the separation o powers, the independence o

the judiciary, transparency and accountability

6. UN General Assembly, A/55/L.32/Rev.1, 24 November 2000.

7. UN Genera l Assembly, Enhancing the role o regional, sub-regional and other organisations and arrangements in promoting and

consolidating democracy, 23 March 2005, UN Doc A/RES/59/201.

8. UN General Assembly, A/RES/60/1, 16 September 2005.

9. UN General Assembly, Promoting and consolidating democracy, 4 December 2000, UN Doc A/RES/55/96.

10. The UN Human Rights Commission was replaced in 2006 by the Human Rights Council.

2. International and Regional OrganisationsEorts in Defning Democracy


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12

Some o these elements are explained in

greater detail in another declaration by the Hu-

man Rights Commission, which states:

() that the rights o democratic governance

include, inter alia, the ollowing:(a) The rights to reedom o opinion and expres-

sion, o thought, conscience and religion, and

o peaceul association and assembly;

(b) The right to reedom to seek, receive and

impart inormation and ideas through any me-

dia;

(c) The rule o law, including legal protection o

citizens rights, interests and personal security,

and airness in the administration o justice and

independence o the judiciary;

(d) The right o universal and equal surage, as

well as ree voting procedures and periodic and

ree elections;

(e) The right o political participation, including

equal opportunity or all citizens to become

candidates;

() Transparent and accountable government

institutions;

(g) The right o citizens to choose their govern-

mental system through constitutional or other

democratic means;

(h) The right to equal access to public service in

ones own country.12

As explained in the introduction, the EU never

ormally defned democracy and it was only in

mental reedoms, inter alia reedom o associa-

tion, reedom o expression and opinion, and

also include access to power and its exercise

in accordance with the rule o law, the holding

o periodic ree and air elections by universalsurage and by secret ballot as the expression

o the will o the people, a pluralistic system o

political parties and organisations, the separa-

tion o powers, the independence o the judici-

ary, transparency and accountability in public

administration, and ree, independent and plu-

ralistic media; ()

Recognizes the comprehensive nature o

democracy as a system o governance that en-

compasses procedures and substance, ormal

institutions and inormal processes, majorities

and minorities, mechanisms and mentalities,

laws and their enorcement, government and

civil society.11

The UN GA resolution and the Human Rights

Commissions declaration are most relevant, be-

cause they provide a ull defnition o democracy.

By talking o essential elements, they outline

the core components, while acknowledging that

there may be others as well. They also imply that

some human rights are particularly relevant or

the notion o democracy, namely the reedoms

o association, expression and opinion, as well

as the right to vote and to stand in elections.

11. Commission on Human Rights, Interdependence between democracy and human rights, 23 April 2003, UN Doc E/CN.4/2003/L.11/Add.4.

12. Commission on Human Rights, Promoting and consolidating democracy, 25 April 2000, UN Doc E /CN.4/RES/2000/47.


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pean Union will become legally binding. While

the Charter is mainly ocused on human rights

protection, it also includes several provisions on

elements o democracy. Conscious o its spir-

itual and moral heritage, the Union is ounded onthe indivisible, universal values o human dignity,

reedom, equality and solidarity; it is based on the

principles o democracy and the rule o law.18

The Lisbon Treaty, as well as the existing Treaty

on European Union, also reers to other Europe-

an documents such as the Charter o Paris or a

New Europe (1990) where democracy is reerred

to and defned in greater detail: We undertake to

build, consolidate and strengthen democracy as

the only system o government o our nations

Democratic government is based on the will o

the people, expressed regularly through ree and

air elections. Democracy has as its oundation

respect or the human person and the rule o law.

Democracy is the best saeguard o reedom o

expression, tolerance o all groups o society,

and equality o opportunity or each person

Democracy, with its representative and pluralist

character, entails accountability to the electorate,

the obligation o public authorities to comply with

the law and justice administered impartially. No

one will be above the law.19

the 1980s and 1990s that the importance o

democracy, which had been central to its own

development and integration, was underlined.

The Treaty on European Union or instance

states that the EU is ounded on the principles odemocracy, human rights and the rule o law and

that these are objectives o its oreign policy. Fur-

thermore, or the process o enlargement, the EU

has adopted political criteria that acceding states

need to ulfl: stability o institutions guaranteeing

democracy, the rule o law, human rights and

respect or and protection o minorities.13 These

criteria are recalled in the Stabilisation and Asso-

ciation process which covers the Western Balkan

countries and includes provisions on eventual

uture EU membership.14 The same objectives

guide the European Neighbourhood Policy.15

Likewise, EU policy on governance and develop-

ment16 includes the protection and promotion o

human rights and democracy as priority issues

to be integrated in country strategies, dialogues

and all relevant external assistance instruments.

They are acknowledged in the European Con-

sensus on Development17 as a common value

or the EU vision o development.

Should the Lisbon Treaty enter into orce,

the Charter o Fundamental Rights o the Euro-

13. Copenhagen European Council, 1993.14. Zagreb summit in November 2000. http://europa.eu.int/comm/enlargement/ intro/sap/summit_zagreb.htm.

15. Strategy Paper COM(2004) 373 fnal o 12.5.2004, Council conclusions o 14.7.2004.

16. Commission Communication COM(2003)615 fnal o 20 October 2003; Council conclusions o 17.11.2003.

17. Joint Statement by the Council and the representatives o the governments o the Member States. Meeting within the Council, the European

Parliament and the Commission: The European Consensus on Development.

18. Preamble, Charter o Fundamental Rights o the European Union, 2000.

19. OSCE, Charter o Paris or a New Europe, 1990, pp. 3-5.


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the EU on democracy, it is worth looking at

the practice and essential characteristics o

EU democracies. In a recent UK Foreign and

Commonwealth Ofce paper on promoting

democratic governance as part o EU CFSPand sustainable development policies21, an

interesting overview is given o what is common

to all EU democracies:

All adult citizens have the right to vote in elec-

tion and to run or public ofce

Elected representatives are chosen in regular,

ree and air elections, with secret ballots

Elected representatives have power to con-

trol government decisions about policy

Elected representatives exercise their con-

stitutional powers without acing overriding

opposition rom unelected ofcials

People have the right to express themselves

on political matters, defned broadly, without

the risk o state punishment

People have the right to seek out diverse

sources o inormation, such as the media,

and such sources enjoy legal protection rom

improper intererence

People have the right to orm independent

associations and organisations, including

independent political parties and interest

groups

Elected representatives have eective control

over state orce, whether civilian or military

People are able to enjoy their human rights,

Some EU agreements provide urther details,

such as the Cotonou Partnership Agreement

concluded between the European Commission

and Arican, Caribbean and Pacifc states:

(...) The Parties reer to their international ob-ligations and commitments concerning respect

or human rights (...) Democratic principles are

universally recognised principles underpin-

ning the organisation o the State to ensure

the legitimacy o its authority, the legality o its

actions refected in its constitutional, legisla-

tive and regulatory system, and the existence

o participatory mechanisms. On the basis o

universally recognised principles, each country

develops its democratic culture. The structure

o government and the prerogatives o the di-

erent powers shall be ounded on rule o law,

which shall entail in particular eective and ac-

cessible means o legal redress, an independ-

ent legal system guaranteeing equality beore

the law and an executive that is ully subject to

the law (...).20

This does not amount to a ull list o essential

elements o democracy, but a number o com-

ponents o the UN GA resolution are included,

such as participation, human rights, the rule o

law, transparency and accountability, ree me-

dia and the independence o the judiciary.

Beyond what has been ormally stated by

20. Article 9, Partnership Agreement ACP-EC, signed in Cotonou on 23 June 2000, revised in Luxembourg on 25 June 2005.

21. UK Foreign and Commonwealth Ofce, Promoting democratic governance as part o EU CFSP and sustainable development policies, 2008


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o society, and equality o opportunity or each

person.

Democracy, with its representative and plu-

ralist character, entails accountability to theelectorate, the obligation o public authorities to

comply with the law and justice administered

impartially. No one will be above the law.22

This OSCE commitment includes elements o

the UN GAs defnition, but is less detailed.

The Organizaion o American Saes (OAS)

states:

Essential elements o representative democ-

racy include, inter alia, respect or human rights

and undamental reedoms, access to and the

exercise o power in accordance with the rule o

law, the holding o periodic, ree, and air elec-

tions based on secret balloting and universal

surage as an expression o the sovereignty

o the people, the pluralistic system o political

parties and organizations, and the separation o

powers and independence o the branches o

government.

Transparency in government activities, probity,

responsible public administration on the part o

governments, respect or social rights, and ree-

dom o expression and o the press are essential

components o the exercise o democracy.

The constitutional subordination o all state

and without any discrimination as to race,

colour, sex, language, religion, political or

other opinion, national or social origin, prop-

erty, birth or other status

The rule o law prevails, so that no one isabove the law and all are equal beore the

law

Government is shared between state, na-

tional, regional and local authorities, so that

public participation and representation is

wide and deep

EU member states support democratic

principles in international relations, abide by

international law and resolve their dierences

through peaceul means

These characteristics reect to a large extent

what is in the UN GA resolution, while being a

little more specifc on a ew aspects.

Some regional governmental organisations

have also made declarations, seeking to clariy

the meaning o democracy. The Organizaion

or Securi and Co-operaion in Europe

(OSCE) states:

Democratic government is based on the will

o the people, expressed regularly through ree

and air elections. Democracy has as its oun-

dation respect or the human person and the

rule o law. Democracy is the best saeguard o

reedom o expression, tolerance o all groups

22. OSCE, Charter o Paris or a New Europe, 1990.


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16

8. Transparency and airness in the manage-

ment o public aairs;

9. Condemnation and rejection o acts o cor-

ruption, related oenses and impunity;

10. Condemnation and total rejection o uncon-stitutional changes o government;

11. Strengthening political pluralism and recog-

nising the role, rights and responsibilities o

legally constituted political parties, including

opposition political parties, which should be

given a status under national law.24

The AU charter includes all essential elements

outlined in the UN GA resolution, although in

its reerence to human rights it does not single

out the reedoms o expression, assembly and

association.

Numerous other organisations have declared

their commitment to respecting democratic

standards, including the Commonwealth, the

Arab League, the Association o South East

Asian States (ASEAN) and the Economic Com-

munity o West Arican States (ECOWAS). These

have not however defned essential elements

o democracy. Relevant documents adopted by

these organisations are quoted in the Annex.

institutions to the legally constituted civilian

authority and respect or the rule o law on the

part o all institutions and sectors o society are

equally essential to democracy.23

The OAS defnition includes all elements o

the UN GA defnition, but is broader in some

aspects, in particular in its reerence to the re-

spect o social rights.

TheArican Unions Charter on Democracy,

Elections and Governance includes as princi-

ples:

1. Respect or human rights and democratic

principles

2. Access to and exercise o state power in

accordance with the constitution o the

State Party and the principle o the rule o

law;

3. Promotion o a system o government that

is representative;

4. Holding o regular, transparent, ree and air

elections;

5. Separation o powers;

6. Promotion o gender equality in public and

private institutions;

7. Eective participation o citizens in demo-

cratic and development processes and in

governance o public aairs;

23. OAS, Inter-American Democratic Char ter, 2001.

24. The Charter was concluded in January 2007, but is not yet in orce or lack o sufcient ratifcations by AU member states.


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17

and o the Universal Declaration o Human Rights

(article 21), as well as the International Covenant

or Civil and Political Rights (ICCPR) (article 25).

Participation in public aairs can take placedirectly, or example by reerenda, or more gen-

erally by being politically active26 or indirectly, by

voting or elected representatives. Standards or

democratic elections, such as equality, secrecy,

universal surage, periodic elections, have

been well defned, or example by the UN27, the

Council o Europe28, the OSCE29 or the South

Arican Development Community (SADC)30.

Article 25 ICCPR makes clear that states not

only have to give the right to citizens to take part

in the conduct o public aairs, to vote and to

be elected, but to also provide them the oppor-

tunity to do so. This means that states should

adopt positive measures or example to allow

detainees or physically disabled people to vote.

Article 25 ICCPR also makes clear that these

rights should be granted to citizens without any

o the distinctions mentioned in article 2. Article 2

prohibits discrimination o any kind such as race,

colour, sex, language and political or other opinion.

From the defnitions quoted above one can

extract the core elements o democracy. It is

noteworthy that these defnitions by intergovern-

mental bodies go beyond minimalist academic

defnitions o democracy, such as those by Dahlor Schumpeter. Dahls inuential polyarchy

concept does not include the separation o

power as a core element o democracy.25 What

he considers institutional guarantees or de-

mocracy are all based on political rights, while

the above-mentioned inter-governmental defni-

tions include institutional aspects o democracy

touching on the shape and inter-relationships o

the dierent branches o power.

Based on the quoted documents, the ollow-

ing can be considered to be essential elements

o democracy:

3.1. Paricipaion in Public Aairs wiou

Discriminaion and e Rig o Sand and

o Voe in Elecions

The right to participation in the conduct o public

aairs and to stand and to vote in elections is

recognised in all commitments as a core element

o democracy. It is also part o even the most

minimalist academic defnitions o democracy

25. Robert Dahl, Democracy and its Critics, 1989.

26. The UN Human Rights Committee, which moni tors the implementation o the ICCPR, ound a violation o the right to take part in the conducto public aairs in a situation where membership o one party was a pre-condition or political activities. Individual Communication o the

Committee in the case oBwalya v. Zambia, No.314/1988.

27. General Comment on Article 25 ICCPR (1996) by the UN Human Rights Committee.

28. Guidelines on elections (2002) by the Venice Commission, which is the Council o Europes advisory body on constitutional matters.

29. Among others the Copenhagen Meeting o 1990.

30. SADC Principles and Guidelines Governing Democratic Elections (2004). For a detailed overview o international election standards, see:

Compendium o International Standards or Elections, Second Edition, 2007, Network o European Experts or Democracy Suppor t (NEEDS).

3. Essential Elements o a Democracy


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18

Freedom o expression includes reedom

to hold opinions without intererence and to

seek, receive and impart inormation and ideas

through any media and regardless o rontiers.

(Article 19, Universal Declaration o HumanRights). The European Court o Human Rights

has declared and oten repeated that reedom

o political debate is at the very core o the

concept o a democratic society.31 The right

to reedom o expression has wide-ranging

implications on access o opposition to state-

controlled media, election campaign regula-

tions, media legislation and the right to access

to inormation (see below).32

Freedom o assembly protects intentional,

temporary gatherings o several persons or a

specic purpose33 and has a clear democratic

unction in the process o orming, expressing

and implementing political opinions.34

Freedom o association is indispensable or

a democracy, because political interests can be

eectively championed only in community with

others (as a political party, proessional interest

group, organisation or other association or

pursuing particular public interests).35

These rights are well defned in legally bind-

ing treaties, such as the ICCPR, the European

Specifc conventions reiterate the prohibition

o discrimination and call or specifc measures

to overcome existing inequalities. The Conven-

tion on the Elimination o all Forms o Discrimi-

nation against Women (CEDAW) calls on statesto take measures to eliminate discrimination

against women in the political and public lie o

a country. Art.4 CEDAW states: Adoption by

States Parties o temporary special measures

aimed at accelerating de acto equality between

men and women shall not be considered dis-

crimination as dened in the present Conven-

tion (...). This covers or example prescribing

quota or emale candidates in elections.

There are other conventions and commit-

ments in avour o specifc groups, reiterating

the need or participation without discrimination,

including the UN Convention on the Elimination

o All Forms o Racial Discrimination (CERD),

the UN Convention on the Rights o Persons

with Disabilities (CPRD) and the GA resolution

on the Rights o Persons belonging to National

or Ethnic, Religious or Linguistic Minorities.

3.2. Freedoms o Expression and Opinion,

Associaion, Assembl

These core political rights are mentioned in the

democracy declarations by the UN GA and the

UN Human Rights Commission.

31. Lingens v. Austria, Judgment o 8 July 1986, Series A no. 103, at para. 42.

32. For in-depth inormation, see: The article 19 Freedom o Expression Handbook, 1983.

33. Manred Nowak, ICCPR Commentary, 2nd revised edition, page 482.

34. ibid, page 481.

35. ibid, page 496.


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19

Several country reports by the UN Human

Rights Commission make clear that there is a

requirement under the ICCPR or courts to be

independent, beyond the realm o criminal law.

For example, the Commission reerred to thecase o Egypt: The Presidents role as both

part o the executive and part o the judiciary

system is noted with concern by the Commis-

sion (...)38.

The UNs Basic Principles on the Independ-

ence o the Judiciary39 give operational guid-

ance on how to secure the independence and

tenure o judges. Regional organisations have

also adopted detailed standards or an inde-

pendent judiciary.40

Courts can play a vital role in ensuring ac-

countability by adjudicating conicts between

dierent branches o power, or example in the

realm o administrative or constitutional law.

The Relationship between

e Legislaive and e Execuive

The separation o powers is a complex issue as

ar as legislative executive relations are con-

cerned, because much depends on the given

Convention on Human Rights and the American

Convention on Human Rights.

3.3 Separaion o Powers

The separation o powers is mentioned as anessential element o democracy in international

commitments. The Commonwealth govern-

ments endorsed detailed Principles on the

Accountability o and the Relationship between

the three Branches o Government.36

The meaning o the separation o power is

relatively clear as regards the independence o

the judiciary rom other branches o power, but

more complex as ar as the distinction between

the executive and the legislative branches o

power are concerned.

Independent Judiciary

The independence o the judiciary is an obliga-

tion under international law in relation to crimi-

nal law. Article 14 ICCPR states: (...) In the

determination o any criminal charge against

him, or o his rights and obligations in a suit

o law, everybody shall be entitled to a air and

public hearing by a competent, independent

and impartial court established by law. (...).37

36. These principles, which are also known as Latimer House Principles, were endorsed by the Commonwealth Heads o Government in Abuja,

Nigeria in 2003.

37. The leading ICCPR commentary notes: The wording and historical background o Art.14 thus demonstrate that agreement was reached ina universal human rights treaty on a provision based on liberal principles o the separation o powers and the independence o the judiciary

vis--vis the executive., Nowak, op.cit., article 14, 2.

38. Concluding Observations o the Human Rights Commit tee, Egypt, U.N. Doc. CCPR/C/79/Add.23 (1993) para. 9. For other cases, see De-

mocracy Reporting international, Discussing International Standards or Democracy, page 6.

39. Adopted by the Seventh United Nations Congress on the Prevention o Crime and the Treatment o Oenders, Milan, 26 August to 6

September 1985; endorsed by Genera l Assembly resolutions 40/32 o 29 November 1985 and 40/146 o 13 December 1985.

40. For example OSCE commitments and a recommendation by the Counci l o Europes Committee o Ministers.


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20

The separation o powers, as defned above,

ollows logically rom the right to vote and to

stand in elections (article 25 ICCPR). In its

general comment on article 25 ICCPR the UNs

Human Rights Commission has noted that:Where citizens participate in the conduct o

public aairs through reely chosen representa-

tives, it is implicit in article 25 that those rep-

resentatives do in act exercise governmental

power and that they are accountable through

the electoral process or the exercise o that

power.43

Indeed in its case law the Human Rights

Commission deals regularly with situations

where the executive is too powerul. In order

or the legislature to play a meaningul role a

number o specifc prescriptions, which also

guide parliamentary strengthening assistance,

need to be in place. Those will be addressed in

the ollowing section (3.4).44

3.4 te Role o Parliamen

Without strong parliaments there can be no

democracy. The need or strong parliaments

is implicit in many o the essential elements o

democracy: the right to vote implies that the

elected institution plays a decisive role; the

political system. Presidential systems have a

clearer separation o legislative executive

powers, because directly elected presidents

do not depend on parliamentary confdence,

their term is independent o that o a parliamentand they can name and direct their cabinet. In

contrast, in parliamentary systems the execu-

tive authority o a prime minister and his or her

cabinet is granted by the parliament and can

be dismissed by a non-confdence vote.41

For these reasons the notion o a balance

o power is sometimes preerred to that o a

separation.

From the point o view o international stand-

ards or democracy, the issue is not the regime

type: presidential and parliamentary systems

are equally acceptable.42 The salient question is

whether elected legislators have sufcient pow-

ers. In many struggling democracies legisla-

tures are dominated by the executive branches

o power, undermining checks and balances

and rendering parliamentary elections almost

irrelevant. It is in this sense that separation o

powers should be understood as a standard

requiring that each branch o power has the

capacity to play a meaningul and sufciently in-

dependent role, whatever the political system.

41. For an overview see M.S. Shugart, Comparative Executive Legislative Relations, The Oxord Handbook o Political Institutions, 2006.

42. This has been made explicit in the UN Human Rights Commissions declaration Promotion o the Right to Democracy (1999): The Com-

mission on Human Rights () arms () the right o citizens to choose the ir governmental system through constitutional or other democratic

means, UN Doc E/CN.4/Res/1999/57.

43. Point 7, General Comment on article 25.

44. Ibid, page 10 and in detail: Toward the Development o International Standards or Democratic Legislatures, National Democratic Institute,

January 2007.


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21

Legislatures should have three main unc-

tions: passing laws, maintaining oversight o

the executive, and acting as a orum or public

debate. These roles have been acknowledged

in a number o international documents. Forexample, the Inter-Parliamentary Union (IPU),

the international organisation o parliaments,

stresses that Democracy () requires the

existence o representative institutions at all

levels and, in particular, a Parliament in which

all components o society are represented and

which has the requisite powers and means to

express the will o the people by legislating and

overseeing government action.50 The IPU also

urges States to saeguard the role o parlia-

ments and political institutions so as to enable

parliamentarians to play their role properly and

reely, inter alia by adopting legislation, oversee-

ing the government and debating major societal

issues.51

Parliaments must be ree to organise their

work autonomously or enjoy eective inde-

pendence.52. The IPU also mentions the need

separation o power and the notion o account-

ability suggests that the legislative branch over-

sees the executive branch o power; the rule

o law requires that all important legislation be

adopted by parliament; a pluralistic system oparties is based on parliamentary competition

and transparency results rom public consulta-

tion on drat legislation and debates on public

aairs in Parliament. Thus, Parliament is the

lynchpin o democratic institutions.45 Some

argue that stronger parliaments are automati-

cally better or democratisation46, but this may

be contested47.

Yet the prime importance o institutions in a

democracy is ully recognised; in the words o

ormer UN Secretary-General, Mr Kof Annan:

In the end, it is all about institutions48. Similarly,

as the Swedish Ambassador or Democracy

recently underlined: Even though civil society is

an incredibly important part o the democracy

scene in a country, it cannot and should not

substitute the ormal democratic institutions,

such as parliaments!49

45. ECOWAS states that empowerment and strengthening o parliaments and guarantee o parliamentary immunity is a constitutional principle

o all its member states, Protocol on Democracy and Good Governance, 2001.

46. Steve Fish, Stronger Parliaments, Stronger Democracy, Journal o Democracy, vol.17 nr.1, 2006.

47. Taeko Hiroi; Sawa Omor i, Perils o Parliamentarism Political systems and stability o democracy revisited, Democratization, Volume 16, Issue 3.

48. Clingendael Institute Symposium, 9 December 2008, The Hague.

49. Maria Leissner, Ambassador or Democracy in Development Cooperation, 29 September 2008, Stockholm.50. IPU, op.cit. The study tests post-communist countries in Europe and Central Asia. However, it does not test whether more signifcant democ-

ratisation may be an eect o European Union enlargement. Furthermore, it does not test i the propensity or electoral raud may impact on

Parliaments perormances.

51. Ensuring lasting Democracy By Forging Close Links Between Parliament and the People, Resolution adopted by the 98th Inter-Parliamentary

Conerence, Cairo, 16 September 1997.

52. OSCE Human Dimension Seminar on Democratic Institutions and Democratic Governance, Warsaw, 12-14 May 2004, Consolidated Sum-

mary, p.12.


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22

recognition and ull acceptance o the supreme

value o the human personality and guaranteed

by institutions providing a ramework or its ull-

est expression.57

Sometimes the rule o law is narrowly con-

strued as an efcient system o justice and law

enorcement. The OSCE Copenhagen commit-

ment and the Charter o Paris or a New Europe

make clear that it is a much broader concept,

which is closely linked to human rights and a

democratic order.

The rule o law commits all public authorities

to comply with independently administered law

and justice systems. The OSCE commitments

stress the duty o the government and public

authorities to comply with the constitution and

to act in a manner consistent with the law.58

They also make clear that the authority o the

law implies certain standards or the legislative

process, namely:

Legislation will be ormulated and adopted

as the result o an open process refecting the

will o the people, either directly or through their

elected representatives59; and:

legislation adopted at the end o a public

procedure, and regulations will be published,

or legislatures to have the requisite powers

and means to express the will o the people by

legislating and overseeing government action. 53

Detailed standards or democratic parliaments

have equally been elaborated in a discussionpaper by the National Democratic Institute54

and have since been urther discussed, deep-

ened and internalised within international and

regional parliamentary associations such as

the Commonwealth Parliamentary Assembly

(CPA)55, the Assemble Parlementaire de la

Francophonie (APF)56 and the Southern Arican

Development Community Parliamentary Forum

(SADC PF). Those exercises should eventually

lead to the adoption or recognition by the inter-

national community o a set o key standards

or democratic parliaments.

3.5 te Rule o Law

There are ew defnitions o the rule o law in

the context o international organisations. The

clearest explanations can be ound in OSCE

commitments:

(The participating states) consider that the

rule o law does not mean merely a ormal

legality which assures regularity and consist-

ency in the achievement and enorcement o

democratic order, but justice based on the

53. IPU, op. cit.

54. See National Democratic Institute, Towards the Development o International Standards or Democratic Legislatures, January 2007.

55. CPA, Recommended benchmarks or Democratic Legislatures, Study Group Report, 2007

56. APF, http://ap.rancophonie.org/spip.php?article1001 , 2009

57. Point 2, Copenhagen Meeting 1990.

58. Ibid, 5.3.

59. Point 18.1., Moscow Meeting 1991.


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23

ing the Cold War it was controversial whether

the reedom o association could be exercised

in one-party systems.63 Since then it seems

clear that the existence o a one-party state

or the prohibition o political parties equatesto a lack o reedom o association and related

reedoms.64

Nevertheless, by mentioning a pluralistic

system o political parties suggests that states

should not hinder the development o political

parties; indeed, they have an obligation to a-

vour it. Pluralism indicates that a party system

should not only consist o a multitude o parties,

but it should also include parties that represent

genuinely alternative policy choices. Political

systems with a mere aade o several parties,

which disguise the state-sponsored dominance

o one or several parties over them, all short o

this core element o democracy.

3.7 transparenc and Accounabili

Transparency and accountability in public ad-

ministration is mentioned in both the 2005 UN

GA resolution and the 2003 declaration by the

UN Human Rights Commission.

that being the condition or their applicability.

Those texts will be accessible to everyone.60

Similar points are made in the UN Human

Rights Commissions resolution on democracyand the rule o law.61

The rule o law as an inherent element o

democracy also means that the will o the ma-

jority has limits, not only in the orm o universal

human rights, but also in the constitutional

ramework o a state. For example, reerenda

should not be used to trump constitutional

provisions.62

The rule o law is organically linked to the

other core components o democracy, namely

the separation o powers, an independent judi-

ciary, and transparency and accountability.

3.6 Pluralisic ssem o poliical

paries and organisaions

One could argue that the need or a pluralistic

system o political parties and organisations

naturally results rom the protection o the ree-

dom o association, including parties. Yet dur-

60. Point 5.8., Copenhagen Meeting 1990.

61. Resolution 2005/32 o 19 April 2005.

62. The Council o Europes Venice Commission notes that the use o reerendums must comply with the legal system as a whole and especiallythe rules governing the revision o the Constitution. Point B.3. Guidelines or Constitutional Reerendums at National Level, 6-7 July 2001.

63. While in 1988 the UN Human Rights Committee ound a violation o the reedom o association in a case where a candidate was barred rom

running in elections outside the only party recognised by the constitution, it did not rule explicitly on the merit o the one-party system, see

Bwalya v. Zambia, No.314/1988.

64. The UN Human Rights Committee noted in its 1996 General Comments on article 25 that the right o persons to stand or elections should

not be limited unreasonably by requiring candidates to be members o parties or specic parties and political parties and membership in

parties play a signicant role in the conduct o pub lic aairs and the election process.


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24

reedom to seek, receive and impart inorma-

tion and ideas o all kinds ().

The precise limits o the right to inormation

are controversial, but at the international levelthe UN Special Rapporteur on reedom o ex-

pression has provided guidance:

the Special Rapporteur (...) emphasizes, that

everyone has the right to seek, receive and im-

part inormation and that this imposes a positive

obligation on States to ensure access to inorma-

tion, particularly with regard to inormation held by

Government in all types o storage and retrieval

systems - including lm, microche, electronic

capacities, video and photographs - subject only

to such restrictions as reerred to in article 19,

paragraph 3, o the International Covenant on

Civil and Political Rights.66

This view was welcomed by the UN Human

Rights Commission.67 The Council o Europes

Committee o Ministers pointed out the im-

portance in a pluralistic, democratic society o

transparency o public administration and o

the ready availability o inormation on issues

o public interest.68 Twelve member states o

the Council o Europe signed a convention on

access to ofcial documents.69

The notion o accountability was explained in

the Inter-Parliamentary Unions Universal Decla-

ration on Democracy:

Public accountability, which is essential to

democracy, applies to all those who hold publicauthority, whether elected or non-elected, and to

all bodies o public authority without exception.

Accountability entails a public right o access to

inormation about the activities o government,

the right to petition government and to seek

redress through impartial administrative and

judicial mechanisms.

Accountability thus implies answerability, i.e.

the obligation to provide inormation and explana-

tion, as well as holding those who are responsible

accountable or their actions (enorcement)65.

Public authority can be held accountable through

elections, through parliaments, as well as through

the courts or other independent institutions such

as human rights institutions, anti-corruption bod-

ies, and so on. It is thus a concept closely linked

to elections and the rule o law.

The concept o transparency is underpinned

by reedom o expression. For example, article

19 (2) states that everyone shall have the right

to reedom o expression; this right shall include

65. ODonnell distinguishes answerability and enorcement as the two main aspects o accountability. Horizontal Accountability in New Democ-

racies., in: A. Schedler, L. Diamond and M. F. Plattner (eds.), Conceptualizing Accountab ility, Boulder, 1999.

66. UN Special Rappor teur on the protection and promotion o the right to reedom o opinion and expression, 1999 Report to the Commission

on Human R ights, E/CN.4/1996/64.

67. Resolution 1999/36, para. 2.

68. Recommendation R(2002)2 on access to ofcial documents, 21 February 2002.

69. The convention will enter into orce once it is ratifed by fve states.


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25

expression. For instance, little attention has so

ar been given to the act that, because o the

development o modern mass media, eec-

tive measures are necessary to prevent such

control o the media as would interere with theright o everyone to reedom o expression in a

way that is not provided or in paragraph 3.72

Freedom o expression thus includes an ob-

ligation on states to prevent excessive media

concentration.73 Special representatives on me-

dia reedoms o our international organisations

noted: In recognition o the particular impor-

tance o media diversity to democracy, special

measures, including anti-monopoly rules, should

be put in place to prevent undue concentration

o media or cross-media ownership (...).74

Article 13 o the American Convention on Hu-

man Rights contains a ar-reaching provision in

avour o media pluralism: The right o expres-

sion may not be restricted by indirect methods

or means, such as the abuse o government or

private controls over newsprint, radio broad-

casting requencies, or equipment used in the

dissemination o inormation, or by any other

means tending to impede the communication

and circulation o ideas and opinions.75

A study on reedom o inormation notes: It

is perhaps as an underpinning o democracy

that reedom o inormation is most important.

Inormation held by public authorities is not

acquired or the benet o ocials or politiciansbut or the public as a whole. Unless there are

good reasons or withholding such inormation,

everyone should be able to access it.70 Indeed,

without sufcient inormation there is no basis

or holding state authorities accountable. The

right to vote becomes less meaningul without

sufcient public inormation allowing voters to

judge a governments perormance.

3.8 Free Media

The Council o Europes Committee o Minis-

ters noted: media reedoms and pluralism are

vital or democracy, given their essential role in

guaranteeing ree expression o opinions and

ideas and in contributing to peoples eective

participation in democratic processes.71

The reedom o the media is largely encom-

passed by the reedom o opinion, expression

and inormation. The UN Human Rights Com-

mission noted in relation to article 19 ICCPR:

Not all States parties have provided inorma-

tion concerning all aspects o the reedom o

70. Toby Mendel, Freedom o Inormation as an Internationally Protected Human Right, briefng paper by article 19.71. Declaration o the Committee o Ministers on protecting the role o the media in democracy in the context o media concentration, 31 January 2007.

72. General Comment nr. 10, adopted by the HRC at its 461st meeting on 27 July 1983, UN Doc. A/38/40, 109. 1983.

73. Nowak, op.cit., p. 448.

74. Joint Declaration on Diversity in Broadcasting, 12 December 2007, UN Special Rapporteur on Freedom o Expression and Opinion, the OSCE

Representative on Freedom o the Media, the OAS Special Rapporteur on Freedom o Expression, the Special Rapporteur on Freedom o

Expression and Access to Inormation o the Arican Commission on Human and Peoples Rights.

75. American Convention on Human Rights (entered into orce on 18 July 1978).


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26

commitments o international and regional

organisations and other groupings to democ-

racy, organised along the essential elements o

democracy.

3.9 table on Commimens o Democrac

b Inernaional, Regional Organisaions

and Groupings

The table below provides an overview o the

Grid o Commimens o Democrac b Inernaional, Regional Organisaions and Groupings

E reers to commitments that were marked as essential elements o democracy by the organisation in question

X reers to commitments which are not specifcally marked as an essential.

UN GA UN Human RightsCommission EU

76 Councilo Europe

OSCE77

Take Part in Conduct o Public Aairs E E access to power X X

Elections (right to vote and to stand) E E X X

Freedom o Association E E X X84 X

Freedom o Assembly E X X X

Freedom o Expression/Opinion E E X X E85

Separation o Powers E E X

Rule o Law E E X86 X87 X

Pluralistic System o Political Parties E E X X88 X

Transparency and Accountability E E X X X89

Free, pluralistic media E E X X90

76. Charter o Fundamental Rights o the European Union, signed by the Presidents o the European Parliament, Council and Commission on 7

December 2000 in Nice.77. I not otherwise indicated, this is based on commitments made at the Copenhagen meeting o 1990.

78. I not otherwise indicated, based on the Declaration on Democracy, Political, Economic and Corporate Governance signed by Heads o State

and Government o the Member States o the Arican Union, 9 March 2003.

79. Aso Rock Commonwealth Declaration on Development and Democracy, Abuja, 7/8 December 2003.

80. Arab Charter o Human Rights, entered into orce on 15 March 2008.

81. IPU Universal declaration on democracy, 1997.

82. Towards a Community o Democracies, Ministerial Conerence, Warsaw 2000.


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27

OAS AU78 ECOWAS Common-wealth79

ArabLeague80

IPU81 Community oDemocracies82

X83 X X X

E E X X X E X

E X X X X E X

E X X X X E X

E X X X X E X

E E

E E X X X E X

E X X

E X X X X X

E X X X

83. OAU/AU Declaration on the Principles Governing Democratic Elections in Arica, Durban, 8 July 2002.84. First optional protocol o the ECHR, article 3.

85. Budapest 1994, point 36.

86. EU Treaty.

87. Recommendation by the Committee o Ministers on the Independence, Efciency and Role o Judges, 1994.

88. Resolution 800 (1983) by the Council o Europes Parliamentary Assembly.

89. Copenhagen 5.2. and Maastricht 2003, point 2.2.4.

90. Moscow 1991, point 26.


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4. Political Commitments vs. LegalObligations

28

sub-regional and other organisations and ar-

rangements in promoting and consolidating

democracy, a large majority o 172 states

approved the resolution with no rejections and

only 15 abstentions.

93

Given that the contento the resolution is also widely practised, one

could thus argue that the democracy defni-

tion o the resolution represents international

customary law. The case is strengthened by

the act that the earlier 2001 UN GA resolution

on promoting and consolidating democracy,

which was even broader than the 2005 reso-

lution, was also approved by a large majority

without rejections (157 states voted in avour

and 16 abstained).

However, even i the UN GA resolutions could

not be interpreted as legal obligations, they are

at least or those who voted in avour an ex-

pression o political commitment, against which

the conduct o these states can be measured.

In that sense it serves as an appropriate reer-

ence point or the EUs democratisation eorts

abroad.

When talking about international standards it

is useul to distinguish between legal obligations

and political commitments. As ar as the notion

o democracy is concerned, its status under

international law remains uncertain.

92

How-ever, it is clear that some essential elements

o democracy represent international law, or

example all those based on the International

Covenant or Civil and Political Rights, which

has been ratifed by a large number o states.

Another source o international law is custom-

ary international law, which can be inuenced

by non-treaty standards. Many provisions o

the Universal Declaration o Human Rights are

widely considered to be customary international

law and thus legally binding anywhere. Resolu-

tions by the General Assembly may be an indi-

cation that their content represents customary

international law, in particular when they were

approved by a signifcant majority o states.

In the case o the above-mentioned UN

GA resolution enhancing the role o regional,

92. J.Wouters, B. de Meester, C. Ryngaert, Democracy and International Law, Netherlands Yearbook o International Law, 2003, p.195.

93. The ollowing states abstained: Belarus, Bhutan, China, Cuba, Democratic Peoples Republic o Korea, Lao Peoples Democratic Republic,

Libya, Myanmar, Saudi Arabia, Syria, Turkmenistan, United Arab Emirates, Venezuela, Viet Nam, Zimbabwe. The ollowing states were

absent: Congo, Kiribati, Saint Kitts and Nevis, Tonga.


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5. Conclusion: Which Notion o Democracyor the EUs External Relations?

29

made by states in the context o the UN and

numerous regional inter-governmental organi-

sations, as is shown in the Annex

The defnition produced by the General Assembly would thereore serve as an ideal

reerence or the EUs promotion o democracy

abroad. This defnition is all the more relevant

because the resolution was specifcally aimed

at regional organisations.

Furthermore, there are a number o political

reasons that make it more appropriate or the

EU to reer to a notion o democracy emerg-

ing rom the UN context, rather than adopt

an EU denition o democracy: First, the EU

has defned eective multilateralism and a

rule-based international order as strategic

objectives.94 Engaging in democracy promotion

world-wide based on a UN defnition would be

more in line with these objectives than a distinct

EU defnition o democracy. While many re-

gional organisations have adopted declarations

on democracy, these have served to clariy their

work inside their particular geographic region.

In contrast, the EUs search or a consensus on

democracy is related to promoting democracy

outside the EU.

Second, using a UN-based defnition o

democracy makes more sense diplomatically.

A wide range o statements by international

and regional organisations confrm a commit-

ment to democracy. Yet only a ew o these

texts defne democracy. The clearest defnition

is contained in the UN General Assemblysresolution on Enhancing the role o regional,

sub-regional and other organisations and ar-

rangements in promoting and consolidating

democracy o 23 March 2005, which contains

a range o essential elements o democracy.

The resolution echoes an earlier declaration o

2003 by the UN Human Rights Commission.

The defnition o democracy contained in the

resolution is relatively broad, including not only

the respect o political rights o citizens, but

also obligations related to the organisation o

a state. It thus provides a meaningul defnition,

beyond some minimalist defnitions based on

electoral competition that have occasionally

been proposed by political scientists. At the

same time the defnition is not so broad as to

make it meaningless. It also very much reects

the EU democratic practice and views.

The General Assemblys resolution was ap-

proved by 172 states, including all EU member

states. While 15 states abstained rom a vote,

no member state o the UN rejected the resolu-

tion. All the elements contained in the resolution

appear in treaties and political commitments

94. The development o a stronger international society, well unctioning international institutions and a rule-based international order is our

objective, A Secure Europe in a Better World European Security Strategy, 12 December 2003.


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30

nationally agreed standards and norms, to be

used in political dialogue.95

In order to clariy its stance on democracy

promotion abroad, the EU could publicly reiter-ate and endorse the UN GAs resolution and the

essential elements o democracy listed in the

resolution, and declare that promoting and sup-

porting these essential elements is the purpose

o its democracy support in third states.

There is no reason why EU partner countries

should accept an EU-prescribed defnition;

rather, they may reject it as a unilateral impo-

sition. In contrast, they cannot object to the

UN GAs defnition, which most o them haveapproved and to which no state has objected.

This defnition could also underpin the concept

o benchmarking. For example, the ACP-EU

Cotonou Agreement specifcally calls or the

development o benchmarks on human rights

and democracy within the parameters o inter-

95. Article 2, Annex VII, Partnership Agreement ACP-EC, signed in Cotonou on 23 June 2000, revised in Luxembourg on 25 June 2005.


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31

ing democracy, 23 March 2005, UN Doc A/

RES/59/201

General Assembly, Promoting and consolidating

democracy, 4 December 2000, UN Doc A/

RES/55/96

General Assembly, Declaration on the Rightso Persons belonging to National or Ethnic,

Religious or Linguistic Minorities, 18 December

1992, UN Doc A/RES/47/135

Commission on Human Rights, Interdependence

between democracy and human rights, 23 April

2003, UN Doc E/CN.4/2003/L.11/Add.4

Commission on Human Rights, Promoting and

consolidating democracy, 25 April 2000, UN Doc

E/CN.4/RES/2000/47Human Rights Committee, General Comment nr.

10, adopted by the HRC at its 461st meeting on

27 July 1983, UN Doc. A/38/40, 109. 1983

Convention on the Elimination o all Forms o

Racial Discrimination, entry into orce on 4

January 1969

Covenant or Civil and Political Rights, entry into

orce on 23 March 1976

Convention on the Elimination o all Forms oDiscrimination against Women, entry into orce 3

September 1981

Convention on the Rights o Persons with Dis-

abilities, entry into orce 2 May 2008

UN Special Rapporteur on Freedom o Expres-

sion and Opinion, the OSCE Representative on

Freedom o the Media, the OAS Special Rap-

porteur on Freedom o Expression, the Special

Rapporteur on Freedom o Expression and

Access to Inormation o the Arican Commission

on Human and Peoples Rights,Joint Declaration

on Diversity in Broadcasting, 12 December 2007

Article 19, The article 19 Freedom o Expression

Handbook, 1983

Dahl, R., Democracy and its Critics, New Haven,

1989

Democracy Reporting International, Discussing

International Standards or Democratic Govern-ance, Berlin 2007

International IDEA, Handbook on Democracy

Assessment, 2002

Mendel, T., Freedom o Inormation as an

Internationally Protected Human Right, briefng

paper by article 19 (http://www.article19.org/

pds/publications/oi-as-an-international-right.pd)

National Democratic Institute, Toward the Devel-

opment o International Standards or DemocraticLegislatures, January 2007

Nowak, M., CCPR Commentary, 2nd revised

edition, Kehl, 2005

ODonnell, G., Horizontal Accountability in New

Democracies, in Conceptualizing Accountability,

A. Schedler, L. Diamond and M.F. Plattner (eds.),

Boulder, 1999

Schumpeter, J.A., Capitalism, Socialism and

Democracy, New York, 1943

Shugart, M.S., Comparative Executive Leg-

islative Relations, in: The Oxord Handbook o

Political Institutions, 2006

Wouters, J., de Meester, B., Ryngaert, C.,

Democracy and International Law, Netherlands

Yearbook o International Law, 2003, pp.137-198

UN DOCUMENtS:

General Assembly, Enhancing the role o

regional, sub-regional and other organisations

and arrangements in promoting and consolidat-

Bibliography


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Council o Europe, Parliamentary Assembly,

Resolution 800 (1983) on the principles o

democracy, 1 July 1983

Council o Europe, Council o Ministers, Rec-

ommendation R(2002)2 on access to ofcialdocuments, 21 February 2002

European Court o Justice, Lingens v. Austria,

Judgment o 8 July 1986, Series A no. 103, at

para. 42.

IPU Universal declaration on democracy, 1997

OSCE, Charter o Paris or a New Europe, 1990

OSCE, Budapest Document Towards a

Genuine Partnership in a New Era, 1994OAS, Inter-American Democratic Charter, 2001

American Convention on Human Rights, entry

into orce on 18 July 1978

OAU/AU Declaration on the Principles Governing

Democratic Elections in Arica, Durban, 8 July

2002

SADC, Principles and Guidelines Governing

Democratic Elections, 2004

Towards a Community o Democracies, Ministe-

rial Conerence, Warsaw, 2000

UK Foreign and Commonwealth Ofce, Promot-

ing democratic governance as part o EU CFSP

and sustainable development policies, 2009

OthER DOCUMENtS:

Arab Charter o Human Rights, entry into orce

on 15 March 2008

The Charter o Fundamental Rights o the

European Union, signed and proclaimed by the

Presidents o the European Parliament, the Coun-cil and the Commission at the European Council

meeting in Nice on 7 December 2000.

EU,A Secure Europe in a Better World Euro-

pean Security Strategy, 12 December 2003

Partnership Agreement ACP-EC, signed in Cot-

onou on 23 June 2000, revised in Luxembourg

on 25 June 2005

Joint Declaration o the Paris Summit or the

Mediterranean, 13 July 2008

Joint Statement by the Council and the repre-

sentatives o the governments o the Member

States meeting within the Council, the European

Parliament and the Commission, The European

Consensus on Development, (2006/C 46/01)

European Commission Strategy Paper, European

Neighbourhood Policy, COM(2004) 373 fnal o

12.5.2004, Council conclusions o 14.7.2004

Commission Communication, Governance andDevelopment, COM(2003)615 fnal o 20 October

2003, Council conclusions o 17.11.2003

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Democracy, Aso Rock, Abuja, 7/8 December

2003

Council o Europe, European Convention or the

Protection o Human Rights and Fundamental-

Freedoms, entry into orce on 3 September 1953


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33

I. UNItED NAtIONS

General Assembl, Enancing e role o re-

gional, subregional and oer organisaions

and arrangemens in promoing and consoli-

daing democrac, 23 Marc 2005, UN Doc A/

RES/59/201

The General Assembly, () 1. Declares that the

essential elements o democracy include respect

or human rights and undamental reedoms, inter

alia, reedom o association and peaceul assembly

and o expression and opinion, and the right to

take part in the conduct o public aairs, directly or

through reely chosen representatives, to vote and

to be elected at genuine periodic ree elections by

universal and equal surage and by secret ballot

guaranteeing the ree expression o the will o thepeople, as well as a pluralistic system o political

parties and organisations, respect or the rule o

law, the separation o powers, the independence

o the judiciary, transparency and accountability in

public administration, and ree, independent and

pluralistic media; ()

General Assembl, Promoing and consoli-

daing democrac, 4 December 2000 UN Doc

A/RES/55/961. Calls upon States to promote and consolidate

democracy, inter alia, by:

(a) Promoting pluralism, the protection o all human

rights and undamental reedoms, maximizing the

participation o individuals in decision-making and

the development o eective public institutions,

including an independent judiciary, accountable

legislature and public service and an electoral sys-

tem that ensures periodic, ree and air elections;

(b) Promoting, protecting and respecting all human

rights, including the right to development, and

undamental reedoms, in particular:

(i) Freedom o thought, conscience, religion, belie,

Annex Compilation o Democracy Commitmentsby Inter-Governmental Organisations

peaceul assembly and association, as well as ree-

dom o expression, reedom o opinion, and ree,

independent and pluralistic media;

(ii) The rights o persons belonging to national,

ethnic, religious or linguistic minorities, including

the right reely to express, preserve and developtheir identity without any discrimination and in ull

equality beore the law;

(iii) The rights o indigenous people;

(iv) The rights o children, the elderly and persons

with physical or mental disabilities;

(v) Actively promoting gender equality with the

aim o achieving ull equality between men and

women;

(vi) Taking appropriate measures to eradicate all

orms o racism and racial discrimination, xeno-phobia and related intolerance;

(vii) Considering becoming parties to international

human rights instruments;

(viii) Fulflling their obligations under the interna-

tional human rights instruments to which they are

parties;

(c) Strengthening the rule o law by:

(i) Ensuring equality beore the law and equal pro-

tection under the law;

(ii) Ensuring the right to liberty and security operson, the right to equal access to justice, and

the right to be brought promptly beore a judge or

other ofcer authorized by law to exercise judicial

power in the case o detention with a view to avoid-

ing arbitrary arrest;

(iii) Guaranteeing the right to a air trial;

(iv) Ensuring due process o law and the right to

be presumed innocent until proven guilty in a court

o law;

(v) Promoting the independence and integrity o

the judiciary and, by means o appropriate educa-

tion, selection, support and allocation o resources,

strengthening its capacity to render justice with


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participation o all members o civil society in the

promotion and consolidation o democracy, by:

(i) Respecting the diversity o society by promot-

ing associations, dialogue structures, mass

media and their interaction as a means o strength-

ening and developing democracy;(ii) Fostering, through education and other means,

awareness and respect or democratic values;

(iii) Respecting the right to reedom o peaceul as-

sembly and the exercise o the right reely to orm,

join and participate in non-governmental organisa-

tions or associations, including trade unions;

(iv) Guaranteeing mechanisms or consultations

with and the contribution o civil society in proc-

esses o governance and encouraging cooperation

between local authorities and non-governmentalorganisations;

(v) Providing or improving the legal and administra-

tive ramework or non- governmental, community-

based and other civil society organisations ;

(vi) Promoting civic education and education on

human rights, inter alia, in cooperation with organi-

sations o civil society;

() Strengthening democracy through good govern-

ance as reerred to in the United Nations Millennium

Declaration5 by, inter alia:(i) Improving the transparency o public institutions

and policy-making procedures and enhancing the

accountability o public ofcials;

(ii) Taking legal, administrative and political meas-

ures against corruption, including by disclosing

and investigating and punishing all those involved

in acts o corruption and by criminalizing payment

o commissions and bribes to public ofcials;

(iii) Bringing government closer to the people by

appropriate levels o devolution;

(iv) Promoting the widest possible public access to

inormation about the activities o national and lo-

cal authorities, as well as ensuring access by all to

airness and efciency, ree rom improper or cor-

rupt outside inuence;

(vi) Guaranteeing that all persons deprived o their

liberty are treated with humanity and with respect

or the inherent dignity o the human person;

(vii) Ensuring appropriate civil and administrativeremedies and criminal sanctions or violations o

human rights, as well as eective protection or

human rights deenders;

(viii) Including human rights education in the training

or civil servants and law enorcement 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 or the ree and airexpression o the peoples will through genuine and

periodic elections, in particular by:

OPPD - Democracy Revisited.original

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