State or organizational policy

The process of creating MDPs, and sometimes of placing them systematically in the regulatory framework of the organisation, may be very revealing of the status of these types of regulations and commitments on the political agenda during the genesis of the respective regional organisations. Some organisations introduced MDPs in the very moment of their constitution. This demonstrates that their commitment to the promotion of democracy was part of their raisons d’être. In other cases, the MDPs were added in a later moment, complementing thereby the original aims and values of the organisation. Finally, in a few cases, no MDPs as such existed, but they were developed along with the operation of the organisation. In these cases, still without an explicit commitment to democracy, actual political events led to assume that such a requirement was implicit in the norms of the organisation.

The Council of Europe (CoE) provides a clear example of an international organisation which considered its commitment to democracy as part of its constitutive document right from its foundation. The CoE included this commitment in the original draft of its Statute in 1949. The paradox is, however, that the MDP in the Statute of the CoE does not explicitly mention democracy itself, except for a brief reference in the preamble, where it is de ned as constituted by individual freedom, political freedom and the rule of law. Instead of a reference to democracy, the provisions of the Statute refer to elements which presuppose it, “human rights and fundamental freedoms”. This reference, enshrined in article 3 of the Charter, together with the sanction mechanism in article 8, constitutes the

most basic structure of the commitment to democracy in the organisation. Originating in the post-war impulse towards democratisation, and against the background of the terrible human rights violations which had occurred in the previous years, it is not surprising that the Council made a commitment of this type at such an early stage. It may perhaps be precisely the early nature of the democratic commitment by the organisation which explains its sparse formulation, to which we will refer in greater detail later.

Simultaneously, Rich (2001: 21) mentions the OAS Charter of 1948 as one of the rst constituent instruments of international organisations that contained the idea of democracy. However, Levitt (2006: 94) minimises the real value of the initial norms on democracy of this organisation, stating that they were at best a waste of paper, and at worst a cynical form of “Realpolitik”. The evolution of the OAS in respect of the protection of democracy was, however, relatively powerful. According to Alda Mejías (2008: 2), the end of the military regimes of the 80s and of the Cold War were the catalysing events that deepened the democratic commitment of the organisation, enabling it “to defend representative democracy in a coherent manner” as one of its central pillars. Thus, the Cartagena Protocol of 1985 incorporated within the Charter of the OAS the obligation to promote and consolidate representative democracy. From the 90s onwards (Levitt 2006: 94) this progression became considerably more intensive: in 1991 Resolution 1080 was approved; it established the convening of a meeting of the Permanent Council if democracy was suspended in one of the member states. In 1997 the Washington Protocol which had been signed ve years earlier, came into force; it authorised the General Assembly to suspend the rights of a member state whose democratically elected government had been overthrown. Finally, in 2001 the Inter-American Democratic Charter was approved, which currently constitutes the most complete mechanism within that organisation for the protection of democracy (for a more detailed analysis of these milestones, see Cooper and Legler 2001).

Several organisations did not recognise MDPs in their respective constitutive treaties and they constructed or at least re ned them through reforms or complementary instruments. In the case of the European Union, assistance and the creation of institutional linkages were from the start conditional upon respect for democratic standards and human rights, although this democratic conditionality was initially informal (Schimmelfennig et al. 2003: 497). In 1963, the then European Communities refused to negotiate the status of an associated state for Spain because of the authoritarian character of its regime (Closa and Heywood 2004). Since then, and for a period of time, compliance with democracy emerged as an obvious but non-formalised criterion. In 1993 a fundamental step was taken in the institutionalisation of democratic conditionality in the EU with the drawing up of the so-called Copenhagen criteria , which establish respect for democratic institutions as a condition for full membership of the European Community, together

with acceptance of the acquis communautaire. And nally, the Treaty of Amsterdam,

anticipating the incorporation of the countries of Central and Eastern Europe with past experiences of totalitarian regimes, formalised “democratic conditionality” (Sadurski 2009-2010: 388). Today the primary legislation of the Union enshrines the requirement for respect for the democratic institutions by the member states in a pre-eminent place, through the combination of articles 2 and 7 of the Treaty of the European Union (TEU) and article 354 of the Treaty on the Functioning of the European Union. The systematic placing of some of these precepts, in particular articles 2 and 7 TEU, in the initial part of the main regulations of the Union, seems to indicate an emphasis on these principles. In a large number of regional integration organisations, MDPs – beyond any rhetorical mention – were not included in their constitutive documents, but were added later in additional protocols or similar documents. In the case of MERCOSUR, the Treaty of Asunción did not refer to democracy, perhaps because of its marked economic and commercial nature. However, democratic conditionality was included via the Presidential Declaration on Democratic Commitment of 1996 and, above all, via the Ushuaia Protocol of 1998. In 2011, the democratic mechanism was re ned in the Montevideo Protocol, also known as “Ushuaia II”, which laid down the sanctioning procedure and extended the range of sanctions.4 _{The evolution of MERCOSUR in this sense constitutes an interesting example} of the gradual institutionalisation, improvement and deepening of the content of the MDP. CARICOM makes no express mention of the idea of democracy, either in its treaty of origin (the Treaty of Chaguaramas) or in the current reformed version. In the opinion of León (2000: 163), this facilitated the approaching towards CARICOM by the Cuban government, as it could enjoy the institutional diversity of the region and the existence of organisations without an MDP. However, it would not be accurate to say that CARICOM would not have taken any kind of position in respect to democracy, considering that its Charter of Civil Society of 1997 includes a commitment to democracy and makes reference to a wide range of rights; this commitment could be considered an informal MDP which is more programmatic than binding in nature (Berry 2014: 94-95).5

The evolution of the CSCE-OSCE is equally interesting and largely re ects the geopolitical changes which occurred on the European continent. The Helsinki Declaration of 1975,

4 We must remember that the situation of this treaty today is “pending” according to MERCOSUR itself (see point 129, referring to the Treaty of Montevideo on democratic commitment, at http://www.mre.gov.py/tratados/public_web/ ConsultaMercosur.aspx, accessed 19 August 2015). To date, the Congress of Paraguay has refused to ratify the Protocol. Despite this, in this chapter, when we analyse the MERCOSUR regulations, we will take account of what was added by Ushuaia II, although we will also refer to the previous regulations to clarify the differences between the two regimes.

5 “However the status of the Charter, despite the strong mandatory language seen in many of its provisions, remains

non-binding, and this impairs its overall e ectiveness. The non-binding nature of the Charter is evident from

its status as a declaration of the Conference (rather than being, for example, a treaty), and also from its weak implementing provision” (Berry 2014: 94-95). Despite of this, and bearing in mind this important particularity, CARICOM’s Charter of Civil Society will be analysed here jointly with the MDPs of the other organisations.

institutionalising the CSCE (renamed in OSCE in 1995), contains references to human rights, although not to democracy as such. However, coinciding with the end of the Cold War, in 1990 the member states signed the Charter of Paris for a New Europe, according to which representative democracy was accepted as binding for all of them (Jawad 2008: 612). In the case of the Andean Community, the MDP was e ectively created in 1998, with the Additional Protocol to the Cartagena Agreement as the constitutive treaty of the organisation; in its original version, the document only referred incidentally to democracy in its preamble. The case of UNASUR was similar, as the MDP was not included in its Constitutive Treaty, which only contained super cial references to democracy; however, the MDP was developed in an Additional Protocol in 2010. UNASUR’s MDP must, moreover, be read in relation to the operation of the organisation, as the Georgetown Declaration (Guyana) of 2010 is also highly relevant in this respect. CELAC did not include an MDP as such in the rst document of the then embryonic organisation, the Latin American and Caribbean Unity Summit Declaration of 2010, although in this document various references were made to democracy as the basis for integration or as a shared value of the region. The real MDP was to appear one year later, with the Special Declaration about the Defense of Democracy and Constitutional Order in the Community of Latin American and Caribbean States signed in Caracas (Sanahuja 2015). We should, however, note the unusual character of CELAC, which does not have a constitutive treaty of hard law in the strict sense, and whose MDP therefore does not have the status of a norm of international law, so that, strictly speaking, it cannot be called a democratic clause.

One nal and very peculiar case is that of SICA. The Tegucigalpa Protocol (which in reality is the constitutive agreement of SICA) does make reference to the idea of democracy: article 3 considers democratic consolidation as a purpose of the organisation, and respect for it is one of its fundamental principles according to article 4, among other references. Indeed, the Governments of States that are part of the organisation signed a Framework Treaty on Democratic Security in Central America, which contains many commitments relating to the respect and promotion of democratic values. However, neither the Tegucigalpa Protocol nor this Framework Treaty on Democratic Security incorporated a process of sanctions to punish breakdowns in constitutional order, nor is it even clear that membership of the organisation is prohibited to undemocratic countries, although in fact all its members are democracies (see Chapter 3). In reality, this situation is not exclusive to this organisation, and it seems to be also present in other regional spheres (Closa 2013), although it is di cult to explain this institutional design, which appears a priori counter-intuitive.