Regional organizations and democratic conditionality Andrea Ribeiro Hoffmann Prepared to be ...

23 Pages·2015·0.37 MB·English

by  Andrea Ribeiro Hoffmann

Regional organizations and democratic conditionality
Andrea Ribeiro Hoffmann
Prepared to be presented at
EUI/RSCAS Seminar on Global Governance /Comparative Regional Integration
Draft – please do not quote without permission!

Introduction
Most existing regional organizations have adopted norms and created instruments to promote
and protect democracy, even organizations whose member-states are not democracies, such as
Association of Southeast Asian Nations (ASEAN) or the Gulf Cooperation Council (GCC).
The literature of comparative regionalism has addressed this puzzle and offered a number of
alternative explanations for this development; a common point of departure is the structural
changes at the global level which took place after the end of the Cold War. Historically, the
first regional organization to include a commitment with democracy was the Organization of
American States (OAS), in 1948, but most norms and instruments to promote and protect
democracy were established after the 1990s (Börzel and van Hüllen 2015).

The idea that regional organizations can play a relevant role in strengthening democracy is not
obvious; the literature of democratic transition and democratization has controversially
discussed the possibility to promote democracy from ‘outside-in’ (O`Donell 1988, Schmitter
and Whitehead 1996). The spread of democratic conditionality in regional organizations all
over the globe is also particularly relevant given the lack of a consolidated regime at the
global level, i.e. at the United Nations System (UN), unlike the case of Human Rights (Rich
2001). In other words, the regional level has been presented as a the best way to promote
democracy multilaterally.

The main objective of this paper is to explore if and under which conditions regional
organizations can play an effective role to protect and promote democracy, and to identify the
main challenges they face. The main argument advanced is that regional organizations can
indeed play a more effective role than global multilateral institutions and single donors in
their bilateral relations given their better positioning in reaching consensus on key definitions
and models of democracy. However, a proper assessment has to take into consideration not
only the characteristics and activities of individual regional organizations separately, but the
crossed effects of organizations which have overlapping mandates and member-states. For
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reasons of time and length, the paper focuses so far only on regional organizations which can
intervene in South American countries, i.e. the Organization of American States (OAS), the
Common Market of the South (Mercosur), and the Union of South American Nations
(UNASUR); it does not include (yet) regional organization from other regions, or the Andean
Community (CAN), the Bolivarian Alliance for the Peoples of Our America (Alba) and the
Community of Latin American and Caribbean States (CELAC). The case of the democratic
crisis in Paraguay in 2012 will be used to illustrate how overlapping organizations promoting
democracy do not always perform complementary roles.

The first part of the paper briefly summarizes the commitments to protect and promote
democracy at the global level. The second part summarizes these commitments by regional
organizations, and the third focuses on South America. The fourth part of the paper analyses
the behaviour of these organizations during democratic crises in their member-states, and the
fifth explores the driving forces of the democratic interventions, and the conditions under
which they were successful. The paper concludes with some remarks about the challenges that
regional organizations face in order to effectively protect democracy in their member-states.

Global norms and instruments to protect and promote democracy
The UN Charter, such as the Covenant of the League of Nations, did not have any explicit
commitment with democracy, except from the reference to ‘we the peoples’ in the Preamble,
give the disagreement about the pertinence of including it among the founding members. As
Rich argues (2001:23), ‘the logical place for the concept of democracy to develop as a
functioning principle of the international legal order is in human rights law’. Indeed it was in
the Universal Declaration of Human Rights (Art.21) where the ‘the will of the people’ as the
‘basis of the authority of government’, and the calls for that will to be discerned through
‘periodic and general elections’ appeared for the first time at the UN. Art.25 of the
International Covenant on Civil and Political Rights (ICCPR) defined democratic procedural
mechanisms (op.cit), but was not signed or ratified by most of the UN members at the time,
for the same reason that precluded a consensus for the inclusion of democracy in the Charter.
The separation and disagreement about the prioritization of civil and political rights on one
hand, and social and economic rights on the other hand, remains a key aspect for the lack of a
strong regime to protect and promote democracy at the global level, but more than 165
countries have by now ratified the ICCPR, more abut 85% of the UN member-states. The
Soviet Union and the recently decolonized countries were the main voices against the
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adoption of universal models of democracy and political legitimacy of national governments
during the Cold War, but cultural specificities and local preferences persist, even among
Western countries, generating a colourful debate about the pros and contras of representative,
participative and deliberative democracies, as well as the persistence differences among
liberal and social democracies, as it will be explored below.

Despite these differences, the end of the Cold War was a turning point for the idea of
democracy promotion. The relationship between security, democracy and development was
reframed and, among others, development policy became to be used as an instrument to
promote democracy, opening up the possibility of establishing economic sanctions in cases of
democratic crisis, via the suspension of aid. Democracy, development and security became
also intertwined in peacekeeping operations.

In terms of international law, the 1993 Vienna Declaration and Programme of Actions
adopted by the World Conference on Human Rights asserted that ‘democracy, developed and
respect for human rights and fundamental freedoms are interdependent and mutually
reinforcing (paragraph 8 of section I). In 1996, the UN Human Rights Committee adopted
General Comment 25, which elaborated on ICCPR’s Art.25 (Rich op.cit:25). The UN
Commission on Human Rights adopted a Resolution 1999/57 on the ‘Promotion of the Right
to Democracy’, and Resolution 2000/47 on ‘Promoting and Consolidating Democracy’. The
UN also expanded its role in the area of democracy outside the Human Rights regime in the
last decades, especially in the area of electoral assistance. Rich (op.cit:26) also mentions the
International Conference of Newly Restored Democracies, convened in 1988, 1994 and 1997,
and the Agenda for Democratization issued in 1996 by Boutros-Boutros Ghali as important
developments in the early 1990s. More recently, the concept of Responsibility to Protect went
further in the establishment of conditions under which sovereignty should be conditioned to
how domestic regimes treat their citizens. In addition, the UN has created a number of
instruments to promote democracy and democratic governance such as the United Nations
Democracy Fund (UNDEF).1 Democracy is now referred as ‘one of the universal and
indivisible core values and principles of the United Nations, despite the fact that not all its
member-states are democratic. Despite promoting democracy, the UN does not have a
democratic conditionality.2

1 http://www.un.org/democracyfund/
2 http://www.un.org/en/globalissues/democracy/democracy_and_un.shtml
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Regional organizations and democratic conditionality worldwide
The literature of comparative regionalism has expanded its original focus on trade and
economic issues to, among others, the role of regional organizations in the promotion of
normative standards, such as democracy, human rights, good governance and the rule of law.

This session only briefly shows the main commitments in the area of democracy in some
regional organizations. They are presented in the table below.

Table1: Commitments with democracy by Regional Organizations (selected)
Regional Charters, Protocols, Declarations
Organization
African Union (AU)  The African Charter on Human and Peoples’ Rights (1981)
 Protocol to the African Chapter on Human and Peoples’
Rights on the Establishment of an African Court on Human
and Peoples’ Rights (1998)
 Lome Declaration on the framework for an OAU response to
unconstitutional changes of government (2000)
 Declaration on the Principles Governing Democratic
Elections in Africa (2002)
 African Charter on Democracy, Elections and Governance
(2007)
Association of  Bali Concord (2003)
Southeast Asian  Vientiane Action Programme (2004)
Nations (ASEAN)  ASEAN Charter (2007)
 ASEAN Political Security Community Blueprint (2009)
 ASEAN Declaration on Human Rigths (2012)
League of Arab States  Pact of the League of Arab States (1945)
(LAS)  Tunis Declaration (2004)

Pacific Islands Forum  Biketawa Declaration (2000)
(PIF)  PIC Agreement (2000)
 Pacific Plan (2005)
 Political Governance and Security (Strategic Plan 2009-
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2011)
South Asia  SAARC Charter (1985)
Association for  SAARC Social Charter (2004)
Regional Cooperation  16th Summit Declaration (2010)
(SAARC)
Southern African  SADC Charter , Article 5 (1992)
Development  Revised SADC Charter, Art. 5.1 (2001)
Community (SADC)  Protocol on Politics, Defence and Security Co-operation,
Art2 &11 (2001)
 Principles and Guidelines Governing Democratic Elections
and a Code of Conduct for Election Observers (2004)
Economic  Declaration of Political Principles (1991)
Community of West  Revised Treaty 1993)
African States  Protocol relating to the Mechanism for Conflict Prevention
(ECOWAS) (1999)
 Protocol on Democracy and Good Governance (2001)
 ECOWAS Conflict Prevention Framework (2008)
Source: various including Börzel and van Hüllen (2015) and
http://www.idea.int/democracydialog/upload/Annex_A_-_Democracy-
Related_Charters_and_Declarations_of_Regional_Organizations.pdf

Regional norms and instruments to protect and promote of democracy in South
American countries

OAS
Democracy was a key principle in the Charter of Bogota (1948) but only after the 1990s the
OAS developed norms and mechanisms to promote and protect it in practice (Herz 2004). In
1990, the Unit for the Promotion of Democracy was created with the aim of providing
technical assistance and consultancy to OAS member-states for the strengthening of their
democratic procedures and policies but, importantly only if solicited. In 1991, the General
Assembly adopted the Resolution 1080, an instrument whereby the General Secretary can call
a meeting of Permanent Council to examine a case of democratic crisis, as well as meetings
with Ministers of Foreign Affairs, or special sessions of the General Assembly, within ten
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days. In 1992, the Washington Protocol was concluded. It entered in force in 1997, and gives
the OAS the right to suspend a member-state in which a democratically elected government
was removed from power by force. In 2001 the Interamerican Democratic Charter was
concluded, defining elements of democracy, and how it must be protected when threatened,
offering member-states a path to guide collective actions. In 2005 the 35th General Assembly
discussed the possibility of including interventionist mechanisms, proposed by the US, but
was blocked by the majority of Latin American member-states, who still value the primary of
the principles of sovereignty and non-intervention (Gindin 2005, Burguess 2005).

Mercosur
Protocol of Ushuaia
The Protocol of Ushuaia is referred as Mercosur democratic clause; it was signed in July
1998 and entered in force in January 2002. Article 1 state that the existence of
democratic institutions is an essential condition to the development of the process of
integration. Articles 2 and 3 state that in case of a rupture (note that not in case of risk of
rupture!) of the democratic order the protocol shall be implemented. Article 4 states that
in case of a rupture of the democratic order the other member-states shall promote
consultation among themselves and with the affected party. Article 5 states that in case
the consultation with the affected party is not productive the other member-states shall
consider the nature and extension of measures to be adopted. These measures include the
suspension of the rights of the affected party to participate in the decision-making bodies
and the suspension of the rights and duties of the process of integration.

Montevideo Protocol of Democracy (Ushuaia II)
The Montevideo Protocol was signed on the 20/12/2011 by the CMC Dec. 27/11, but is not
yet in force. It reaffirmed the contents of the Protocol of Ushuaia and included in its article 1
that it is to be implemented not only in the case of a rupture of the democratic order (as in
Ushuaia) but also in the case of a menace of rupture of the democratic order, the violation of
the constitutional order or any other situation which puts in risk the legitimate exercise of
power and the democratic principles and values. Ushuaia II broadened therefore the cases in
which Mercosur’s democratic clause can be implemented. Article 6 is also much more precise
in the description of measures, referring to the closure of borders (Art6.), promotion of the
suspension of the affected party from other international and regional organizations (Art.6d),
additional political and diplomatic sanctions (Art.6f). Article 7 however states clearly that the
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measures should not risk the wellbeing and the human rights of the population, and should
respect the sovereignty and territorial integrity of the affected party.

Protocol of Human Rights
Human Rights and democracy have been treated quite differently in Mercosur, democratic
conditionality was addressed by the Protocols of Ushuaia and Ushuaia II, as just seen, while
human rights has been addressed in another protocol, the Mercosur Protocol of Human Rights
signed in 2005 (in force in 2010). The Protocol of Human Rights states that respect of human
rights and fundamental freedoms are essential conditions for the process of integration
(Art.1). It foresees the suspension of the violating party in case consultations to deal with
serious and systematic violations of human rights and fundamental freedoms in one of the
member-states as ineffective, especially in times of institutional crisis or during a state of
emergency foreseen in their respective constitutional orders (Art.3,4).

Others instruments in Mercosur
Other instruments that Mercosur has to promote democracy and human rights are for instance
the Observatory of Democracy, created in 2007 with the aims of, among others, contributing
to the strengthening of the objectives of Ushuaia Protocol and the democratic commitment in
Mercosur; following the electoral processes in member-states; coordinating the activities of
the Electoral Observation Missions. The Presidential Declaration on Human Rights (2005),
made reference, for the first time in Mercosur, to the right to the truth and fight against
impunity (Art. 5), and states that it is a collective right to know the truth about the past events
(Art.6). The Protocol establishing the Mercosur Parliament also contains a number of
references to democracy, human rights and good governance of member-states. Art. 4 which
deal with its competences, establishes that it shall elaborate and publish a report on the
situation of human rights of Mercosur member-states annually and affirms that the Parliament
shall protect the democracy of Mercosur member-states and refers to the Protocol of Ushuaia.
The Meeting of High-level Authorities in Human Rights of Mercosur (HR Meeting), created
in 2004, and the Mercosur Human Rights Public Policy Institute (HR Institute), created in
2009 are also key institutions to consolidate the agenda of human rights. 3 Mercosur does not

3 The protection of fundamental rights is also addressed in the (mandatory) Decision of the Common
Market Council (CMC Dec.64/10) which approved an Action Plan for a Mercosur Citizenship Statute.
According to Art.2 of the decision, the Statute shall include fundamental rights and benefits to
Mercosur member-states, and conform to the objectives of the implementation of a policy of free
movement of peoples, equal civil, social, cultural and economic rights and freedoms, equal access to
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provide for the opportunity of litigating against human rights violations. However, the
expansion of the jurisdiction of Mercosur’s dispute settlement mechanism (DSM) into the
area of human rights is currently being discussed (Lixinski 2010; Giopone 2012).

An expansion of its jurisprudence into the area of human rights would not require any changes
in the DSM structure, but most experts consider it very difficult to do so in the absence of a
regional court or a Charter of Human Rights (Sant’anna Rosa Apud Lixinski 2010: 357).
Proposals for the creation of a regional court have been discussed by legal scholars and
magistrates in the context of the ‘Dialogue Between the Supreme Courts of Mercosur
member-states’ and the ‘Permanent Forum of Supreme Courts of Mercosur’ (both created in
2004). However, a regional court would demand changes in the Brazilian and Uruguayan
Constitutions, which are considered very unlikely. The so-called Bridges Case has exposed
the limits of such a development. The case was brought to the ad hoc arbitration court in June
2006 by Uruguay against Argentina. It refers to the blockade of international bridges between
both countries by environmentalist groups protesting the construction of pulp mills on the
Uruguay River located on the border. The case is analyzed in detail by Lixinski, who argues
that the ruling took a narrow view and gave clear preference to goals of economic integration
over the question of human rights (2010: 364).4 The case of the suspension of Paraguay from
Mercosur in 2012 brought new elements to this discussion. Paraguay was suspended from
Mercosur in June 2012 following the impeachment of President Lugo, interpreted as a coup
d’état by the other member states, who followed the procedures established by the Protocol of
Ushuaia. Paraguayan interim President Federico Franco, however, questioned the legality of
the decisions taken by the Presidents, and his government took the case to Mercosur’s Court.
The finding 01/2012 of the Court was against Paraguay, but significantly, it included a
discussion about its competences to judge political cases. While the Court explicitly stated
that there is nothing that precludes it to judge such cases, this, however, did not apply to the
procedures established for exceptional cases of urgency established by the Protocol of Olivos,
which is strictly limited to trade cases (Perotti 2013). The Court did not settle the question
whether cases of violations of democracy and human rights referred to by the Protocol of

work, health and education. Detailed objectives in these areas are established in Art. 3; most refer to
social rights, but it also includes references to the rule of law, such as the creation of a Mercosur
system of consumer protection. According to Art. 7, it should be implemented by Mercosur’s 30th
Anniversary in 2021.
4 The Ad Hoc Arbitration Court finding 09/2006 stated the “omission of the state of Argentina to adopt
appropriated measures to prevent and/or stop the impediments to the free circulation of the derivates of
beef in the Argentinian territory and the routes to the international bridges San Martin and gral which
unite the Republic of Argentina with the Oriental Republic of Uruguay” (translation by author).
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Ushuaia and the Protocol of Human Rights could ever be brought to the Court in a non-
emergency situation; it argued that Mercosur’s normative structure does not create a
supranational order which can replace the sovereignty of its member-states.

Unasur
Unasur was created in 2008, in a context of changing paradigms of economic integration in
South America. Free trade lost its centrality to other activities of cooperation such as in the
areas of infrastructure and social policies. To achieve these aims, several Councils were
created in the areas of social development, health, education and culture, in addition to the
Council of Economics and Finance. The Social Development Council, for instance, has a broad
mandate and seeks to contribute to the achievement of fairer, more democratic societies, and to
promote cooperation mechanisms in order to achieve an integrated social development, reduce
asymmetries and deepen the process of regional integration (Tussie and Riggirozzi). While some
of these areas have also become more relevant in other existing regional organizations such as
Mercosur, a striking innovation of Unasur is the establishment of cooperation in the areas of
security and defence. The creation of the South American Defence Council (SADC) is
exceptional in that regard. It is the first time that defence was included in a South American
regional organization, and that security was addressed from a broader perspective (Briceno and
Ribeiro Hoffmann 2015).

A central substantive element in the concept of security and defence in Unasur is the collective
commitment to the protection and promotion of democracy and human rights. Unasur has a
democratic clause, in the form of a protocol signed in November 2010 (Additional Protocol to
the Constitutive Treaty of Unasur on Commitment to Democracy), which builds from the
democratic clauses of Mercosur and the Andean Community, Unasur’s constitutive treaty and
the Declaration of Buenos Aires from October 2010. The Protocol reinforces the commitment to
the promotion, defence and protection of the democratic order, the rule of law and its institutions,
Human Rights and fundamental freedoms. All are considered as essential and indispensable
conditions to participation in Unasur. Art. 1 states that is shall be applied in cases of breach or
threat of breach against the democratic order, a violation of the constitutional order or any
situation that jeopardizes the legitimate exercising of power and the application of the values and
principles of democracy. Art. 4 established that the rights of the violating member-state to
participate in the various bodies and branches of Unasur can be suspended, as well as its rights
and benefits under the Constitutive Treaty. It also foresees the closure of borders and trade ,
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communication, provision of energy, services and supply (economic sanctions) , and additional
political and diplomatic sanctions. Such the cases as Mercosur and the Andean Community, the
commitment to democracy and human rights is balanced with commitments to sovereignty and
non-interference, and do not include military sanctions or references to the principle of
Responsibility to Protect.

Protecting democracy in practice in South America
South American regional organizations have reacted to crises in their member-states by the
means of diplomatic pressure, no one has, so far, implemented economic or military sanctions
(the latter are not even foreseen). Before analyzing the reaction of regional organizations, this
session discusses how democratic crises in South America have been defined by contrasting
two indicators. Table 1 below lists events of political instability in South American countries
as developed in the Stability Map Reports, published twice a year by the Observatório Político
Sul-Americano (OPSA).5 OPSA Reports define five types of political instability: coup d’état,
civil war, state of emergency, interruption of presidential mandate and social revolt. The first
two can be defined as democratic ruptures, and all involve risks to the protection of human
rights (Ribeiro Hoffmann 2010).Table 2 shows the democratic indicators from Freedom
House.

As it can be observed by contrasting the two tables, it is possible to measure democracy in
very different ways, leading to different interpretations of the quality of democracy and the
existence or not of democratic crises or threats of democratic crises. Cases of military coups
are less problematic, but cases of so-called constitutional coup d’état can often become very
controversial, such Paraguay 2012. Venezuela has also been a particularly controversial case,
given the long list of complex events since the beginning of the 1990s led by former President
Chavez, or against him. The situation in Venezuela and Ecuador, for instance, was differently
interpreted by the OPSA Map of Stability and by Freedom House. According the OPSA Map
of Stability, Venezuela and Ecuador “are going through a process of deep institutional reform
in a political context of dispute and active popular participation, but do not show signals of
instability”.6 According to Freedom House , instead, “The run-up to Venezuela’s state and
local elections in November 2008 was characterized by politically motivated disqualifications

5 The last available Stability Map was the one published in 2010. For details about the methodology
used see the report online:
http://www.opsa.com.br/images/pdf/mapa/11_mapaestabilidade_10_mapa_10_01.pdf.
6 OPSA (2008, p.6). http://observatorio.iuperj.br/pdfs/7_mapaestabilidade_mapa_2008_2.pdf .
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