Análisis de la Documentación Creada por el Programa

As mentioned above, the process of recognition concerns not only states but also their acceptance as members into interstate organizations based on certain criteria. The European Union accession process and its Copenhagen criteria best demonstrate the interplay between recognition of a state’s membership in an organization and constitutional norms. The Copenhagen criteria explicitly mention democracy, the protection of human rights, and the rule of law as essential requirements for a state to join the European Union and to be recognized as a member of this community.²³² These criteria imply that a democratic constitution is a necessary mechanism to fulfill these membership criteria: a constitution is generally regarded as the requisite framework for a democratic government because it ensures the protection of human rights and respect for the rule of law. As a result, accession is an interactive process. Aspiring states may gain political status within a particular organization by addressing the Copenhagen criteria in their constitutional design. At the same time, select members of the international community are able to assess the state’s readiness to become a member so as to ensure stability, order, and peaceful co-existence among all the members.

231 Law and Versteeg, 2011, 1172.

232 European Council. Copenhagen Presidency Conclusions, (June 21-22, 1993).

The most ambitious project of regional integration in the world, the EU played an important role in fostering national reconciliation, stable democracy, and economic development in Europe after the end of the Second World War. Although it was not until 1992 when the obligation to respect human rights, democracy, and the rule of law became mandatory under EU primary law,²³³ these fundamental principles had been the main benchmark for evaluating candidate states since the mid-1970s.²³⁴ Reviewing the candidacy of Spain, Portugal, and Greece, which at that time had only recently transitioned from authoritarian regimes to democracy, the European Council declared that respect for human rights and representative democracy were essential for acquiring membership.²³⁵

The elaboration of a more complex set of rules on accession became particularly urgent after the end of the Cold War, when a great number of states that had belonged to the Soviet bloc applied to join the EU.²³⁶ The criteria adopted at the Copenhagen summit in 1993²³⁷ became the formal, substantive requirements for accession to ensure that future members of the Union were reliable and committed to pursuing EU goals.²³⁸ The Copenhagen criteria included political requirements, economic criteria, the acquis communautaire (the acquis),²³⁹ and the less formal

233 Article F of the Treaty on European Union. Treaty on European Union (Maastrich Treaty), 1992. Official Journal C 191.

234 Karen E. Smith, “The Evolution and Application of European Union Membership Conditionality,” in The Enlargement of the European Union, ed. M. Cremona (Oxford: Oxford University Press, 2003), 109-110.

235 European Council. The Declaration on Democracy, in Conclusions of the European Council Session in Copenhagen, April 7, 1978. For the background of the Declaration on Democracy, see Roger J. Goebel, “The European Union Grows: The Constitutional Impact of the Accession of Austria, Finland and Sweden,” Fordham International Law Journal 18 (1994-1995), 1145-47.

236 Luisa Ficchi, “Candidate Countries Facing A Binding Charter of Fundamental Rights: What's New?,” IUS Gentium: Comparative Perspectives on Law and Justice 8 (2011), 115.

237 Copenhagen Presidency Conclusions, 1993.

238 Milada Anna Vachudova, Europe Undivided: Democracy, Leverage, and Integration After Communism, (Oxford:

University Press, 2005), 121.

239 The acquis is very specific and organizes into a single body all of the laws, norms, and regulations that are in force among EU member states.

requirement of “good neighborliness,”²⁴⁰ all of which reflected the broad consensus of EU members in favor of liberal democracy, market capitalism, and the peaceful resolution of disputes.²⁴¹ The Copenhagen political criteria note explicitly that, for membership, the candidate country must have “achieved stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities.”²⁴²

These criteria found firmer legal grounding in the 1997 Amsterdam Treaty, which was later amended by the Lisbon Treaty by inserting the provision that:

[t]he Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.²⁴³

In addition, Article 49 of Amsterdam treaty affirms that:

[any] European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. […]. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State.²⁴⁴

Although these two Articles did not find further elaboration in EU primary law, they

“have been clarified by the detailed assessment of each candidate in light of these criteria, first in the Opinions of 1997 and then subsequently in the Regular Reports published on the progress of each of the candidates every year.”²⁴⁵ For example, in reviewing the applications of ten acceding

240 Suggested by Karen E. Smith. See Smith, 2003, 105–139. This requirement, along with the provision of ethnic and minority rights, was enforced first and most vigorously by EU governments in the early 1990s. Vachudova, 2005, 122.

241 On the EU’s membership requirements, see Susan Senior Nello and Karen E. Smith, The European Union and Central and Eastern Europe: The Implications of Enlargement in Stages (Aldershot, UK; Brookfield, USA:

Ashgate, 1998).

242 Copenhagen Presidency Conclusions, 1993.

243 European Union. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2008. Official Journal C 115, 0001 – 0388.

244 Ibid.

245 Vachudova, 2005, 121.

Central European states,²⁴⁶ the European Commission (the Commission) adopted an influential report titled “Agenda 2000 – For a Stronger and Wider Union.” This report not only summarized the Commission's opinions on each applicant's political qualifications, but also revealed the substantive meaning of these political criteria.²⁴⁷

First, since key democratic institutions in the Western sense include a constitution with particular provisions, a democratic form of governance, electoral law that renders efficient majorities, and plebiscitarian instruments,²⁴⁸ the EU expected new applicants to do likewise. This meant drafting well-balanced, modern constitutions; developing political parties and responsible popular leadership; creating governmental structures with popularly elected and effective parliaments and executive branches; adopting essential legislation and administrative regulations appropriate for a functional democracy; and establishing an accountable judiciary.²⁴⁹ Second, the criteria calling for respect for human rights implied that the applicants needed to formulate basic rights in their constitutions, and to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the protocol on permitting their citizens to take cases to the Strasbourg Court of Human Rights.²⁵⁰ And to fulfill the third criterion, the protection of minority rights, the Commission pressed the applicant nations to take definitive legislative and administrative action. As the Commission noted, “[m]inority problems, if unresolved, could affect democratic stability or lead to disputes with neighboring countries.”²⁵¹

246 Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia.

247 European Union. Agenda 2000, 1997.

248 Klaus von Beyme, “Institutional Engineering and Transition to Democracy,” ed. Jan Zielonka and Alex Pravda, 2 vols., vol. 1: Institutional Engineering Democratic Consolidation in Eastern Europe (Oxford Scholarship Online, 2003), 5.

249 Roger J. Goebel, “Joining the European Union: The Accession Procedure for the Central European and Mediterranean States Featured Article,” Loyola University Chicago International Law Review 1, no. 1 (2003-2004), 27; For an overview of the democratization process, See Mary Kalder and Ivan Vejvoda, eds., Democratization in Central and Eastern Europe (London, New York: Printer, 1999).

250 Agenda 2000, 41.

251 Ibid., 42.

Thus, the Commission’s review of each applicant’s political qualifications was notable for several reasons. To begin, it attempted to go beyond a mere formal description of political institutions and instead sought to assess how the letter of constitutional texts was applied in political practice.²⁵² The Commission’s report also suggests that the criteria on democracy, the rule of law, and human rights are realized primarily through deploying internal constitutional mechanisms. Thus, states seeking EU membership would likely need to amend existing constitutional structures, provisions, and procedures, or establish new ones altogether. Lastly, the Commission’s reviews demonstrate that the requirement of establishing democratic procedures on elections, the separation of powers, self-governance, and the protection of human and minority rights was intended to guarantee stability and order on the regional scale.

Another example that reveals the relevance of a constitution for the Copenhagen criteria and the recognition process is the EU’s position on relations with the states of the former Yugoslavia. In 1997, the General Affairs Council agreed that, in evaluating compliance with democratic principles, the following conditions would be verified: the existence of a representative government and of an accountable executive; the presence of a government and public authorities that act in accordance with the constitution and the law; the separation of powers (government, administration, judiciary); and the holding of free and fair elections at reasonable intervals and by secret ballot.²⁵³ Under the heading of human rights and the rule of law, the General Affairs Council included freedom of expression, including an independent media; the right of assembly and demonstration; the right of association; the existence of effective means of redress against administrative decisions; access to courts and the right to fair trial; and respect for the principle of equality before the law and equal protection under the law.

252 Goebel, 2003-2004, 27.

253 See Annex, European Council. Conclusions On the Principle of Conditionality Governing the Development of the European Union’s Relations with Certain Countries of Southern Europe, 1997.

The document also recognized the right of minority groups to establish and maintain their own educational, cultural, and religious institutions, organizations or associations; the need to guarantee adequate opportunities to use their respective language before courts and public authorities; and adequate protection of refugees and displaced persons returning to areas where they represent an ethnic minority.²⁵⁴

The Copenhagen criteria, however, are not without criticism, mostly with respect to a number of political and policy issues. First, the criteria set higher political standards for candidate countries²⁵⁵ and required signing a greater number of international documents when compared to existing member-states.²⁵⁶ Second, the lack of a clear definition and comprehensive clarification on how the standards of democratic values and inclusiveness should be met in policy and in practice lead to inconsistent, “broad[,] and disparate interpretations,” especially with respect to minority rights.²⁵⁷ The ambiguity of these terms makes them problematic measures of the progress made by candidate states.²⁵⁸ Finally, the progress and monitoring reports the Commission regularly issues clearly indicate that it has adopted a case-by-case approach for evaluating political criteria.²⁵⁹

Despite these shortcomings, the monitoring reports demonstrate that the states’

conditions are reviewed within a general constitutional framework.²⁶⁰ For its part, to evaluate whether candidates have met the political criteria, the Commission explores their constitutional

254 Ibid.

255 Geoffrey Pridham, “European Union Enlargement and Consolidating Democracy in Post–Communist States - Formality and Reality,” Journal of Common Market Studies 40, no. 5 (2002), 957.

256 Open Society Institute, “Monitoring the EU Accession Process: Minority Protection,” 2002, 62 (which observes that many EU member states themselves lack the mechanisms for monitoring human rights performance).

257 Ibid., 19.

258 Dmitry Kochenov, “Behind the Copenhagen Facade. The Meaning and Structure of the Copenhagen Political Criteria of Democracy and the Rule of Law,” European Integration On-Line Papers 8, no. 10 (2004).

259 M. Maresceau, “Pre-accession,” in The Enlargement of the European Union, ed. M. Cremona (Oxford: Oxford University Press, 2003), 9.

260 Ibid., 9.

guarantees; provides a description of their various institutions, such as parliament, executive, and judiciary; and examines how the various rights and freedoms are exercised in practice. It analyzes the way in which the candidate countries respect and implement the provisions of the major human rights conventions and devotes particular attention to minority rights and the protection of minorities.²⁶¹ In this way, the EU has gradually shifted from its requirement to have in place only constitutional guarantees to a careful examination of the way democracy functions in practice.²⁶²

The steps that accession countries have undertaken include institutional changes and passing relevant legislation for which a constitutional background or constitutional amendments are likewise necessary. For example, to join the EU, Bulgaria had to change its constitution in order to better address the magistrate’s immunity and the structure of judiciary.²⁶³ Similarly, Slovakia had to hold municipal elections, adopt a charter on local self-government, establish direct election of the president, and ensure the involvement of opposition parties in parliamentary appointments,²⁶⁴ all of which required the relevant constitutional context and strengthened the democratic principles in the state. Moreover, in response to the requirements of accession, all candidate states²⁶⁵ have adopted programs to tackle discrimination or promote the re-integration of ethnic or national minorities in order to demonstrate their willingness to comply with the political criteria.²⁶⁶ Thus, the EU made clear that it would not be “ready to start the negotiations

261 European Commission. Towards the Enlarged Union: Strategy Paper and Report of the European Commission on the Progress Towards Accession by Each of the Candidate States, 2002.

262 Kochenov, 2004.

263 Ibid.

264 Pridham, 2002, 960.

265 The term “candidate states” here refers to Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia, all of which started their accession to EU between 1994 and 1996, and attained membership in 2004 or 2007. See www.ec.europa.eu/enlargement.

266 Open Society Institute, Monitoring the EU Accession Process: Minority Protection, 2002, 22.

with a country if there are any doubts concerning the democratic conditions, the respect for human rights and the protection of minorities.”²⁶⁷

To summarize, the Copenhagen criteria established a set of political conditions for the recognition of states as members of a regional organization. The fulfillment of these political criteria is grounded in the establishment and implementation of democratic principles and norms through a constitution and constitutional development. By influencing the foreign policy of aspiring members through constitutional means,²⁶⁸ the EU accession criteria seek to pursue the EU’s aims of stable democracy and economic development throughout the region. As a result, meeting the constitutional requirements for the rule of law, democracy, and the protection of human rights ensures a state’s membership in an influential regional organization.

The nature of the EU accession process demonstrates that there is a strong interplay between constitutional norms and a specific kind of recognition, namely, membership in an organization. This membership requires compliance with the criteria on admission and the introduction of necessary changes into the domestic constitutional framework, changes that do not, however, affect the recognition status of the state seeking admittance. Thus, if a state fails to satisfy the accession conditions to an organization, it would lack recognition as a member within that organization but would continue to hold recognition as a state.

The case of the relationship between constitutional norms and the formal recognition of unrecognized states is different. The above analysis of international legal doctrines and concepts has illustrated the strong linkages between the process of recognition and a constitution. This mutual interaction suggests that a constitution matters for the recognition of an unrecognized

267 Gunter Verheugen, "The Enlargement of the European Union," European Foreign Affairs Review 5, no. 4 (2000), 41.

268 M. Cremona, “Enlargement: A Successful Instrument of EU Foreign Policy?,” in European Union Law for the Twenty-first Century: Rethinking the New Legal Order, ed. T.Tridimas and P. Nebbia (Oxford: Oxford University Press, 2003), 268.

state on a theoretical level. More specifically, the analysis revealed that, in theory, constitutions or, broadly speaking, the constitutional developments of a state, may predispose the international community to grant recognition of a government, a state, or membership in an organization. In theory, recognized sovereign states expect the fulfillment of both the traditional and contemporary criteria for recognition, which are partially realized through constitutional mechanisms. This, however, raises the question of whether a relationship between a constitution and recognition exists not only in theory but also in practice and, if so, what evidence demonstrates it. The examples of Croatia and Kosovo in the next section provide some insight on this potentially positive correlation between a constitution and diplomatic recognition. But, at the same time, they also problematize the straightforward doctrinal expectations in practice, a point that is addressed in subsequent chapters of this dissertation.

2.2. Examples of Practices Consistent with the Doctrinal Framework