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The OAS Legalizing Norms of Democracy PDF
The OAS Legalizing Norms of Democracy PDF
1.
Background ............................................................................................... 22
2.
Materials .................................................................................................... 24
3.
Analysis: Fulfilling the Copenhagen Political Criteria: the
Turkey 2010 Progress Report................................................................ 25
4.
Issues: An Additional Enforcement Mechanism: EU Political
Conditionality Implementing Council of Europe Democracy
Standards .................................................................................................. 28
5.
Further Reading ....................................................................................... 31
2 GLOBAL ADMINISTRATIVE LAW: THE CASEBOOK
1.
Background ............................................................................................... 33
2.
Materials .................................................................................................... 35
3.
Analysis ...................................................................................................... 35
4.
Issues.......................................................................................................... 38
5.
Further Reading ....................................................................................... 41
1.
Background ............................................................................................... 43
2.
Materials and Sources .............................................................................. 44
3.
Analysis ...................................................................................................... 45
4.
Promoting Democracy in the Americas: A Difficult Balance .......... 47
5.
Similar Cases ............................................................................................. 48
6.
Further Reading ....................................................................................... 48
1.
Background ............................................................................................... 50
2.
Materials .................................................................................................... 52
3.
Analysis ...................................................................................................... 53
4.
Issues: Can Participation Be an Instrument of
Democratization? .................................................................................... 54
5.
Further Reading ....................................................................................... 55
1.
Background ............................................................................................... 57
VII. GLOBAL DIMENSIONS OF DEMOCRACY 3
2.
Materials .................................................................................................... 59
3.
Analysis ...................................................................................................... 60
4.
Issues: The Delicate Role of Global Technical Bodies in Setting
National Democratic Standards: the Venice Commission
between Téchne and Politeia ................................................................. 63
5.
Further Reading ....................................................................................... 66
1.
Background ............................................................................................... 68
2.
Materials and Sources .............................................................................. 69
3.
Analysis ...................................................................................................... 70
4.
Issues: Is There a Supranational Concept of Democracy? ................ 71
5.
Further Reading ....................................................................................... 73
1.
Background ............................................................................................... 74
2.
Materials: Norms and Relevant Documents ....................................... 78
3.
Analysis ...................................................................................................... 82
3.1.
The Convergence of Legislative, Administrative and Judicial Powers .... 82
3.2.
Immunity ........................................................................................................... 88
4.
Issues: Accountability of UN Interim Administrations ..................... 92
5.
Further Reading ..................................................................................... 101
VII.B.4
Does Civil Society Promote Democracy? The Arab Spring and
the EU’s “New Response to a Changing Neighbourhood”
Valentina Volpe
VII.C. Media
Giacomo Delledonne
1. Background
The Organization of American States (OAS) was established in April 1948 by the
Charter of Bogotá (see § V.7 “The OAS and the Inter-American Court of
Human Rights: A Human Rights’ Framework for the Americas” by B. Bonafini).
The Charter formalized the so-called Inter-American System which had been in
place since the 1st Inter-American Conference in Washington (1889-90). At the
very beginning, the Inter-American System mainly had commercial goals: its chief
body was an internal office of the U.S. Department of State, entrusted with
collecting information and statistical data on commerce, production and custom
tariffs of the American States. In the first half of the 20th century, the Inter-
American Conferences adopted recommendations and treaties concerning
consular and diplomatic relations, asylum, extradition, the treatment of foreign
nationals, conflict of laws, intellectual property, and scientific and cultural
cooperation. From the 1930s, the peaceful resolution of controversies and
collective security became the central business of the Inter-American System.
The Inter-American Treaty of Mutual Assistance (Rio de Janeiro 1947) was
a regional agreement for the preservation of security and peace, as envisaged
under Article 52 of the UN Charter. Following this, the OAS was established
with the goal of promoting the peaceful resolution of controversies (the Charter
of Bogotá of 1948). According to Article 1 of the Charter, the OAS is “a regional
agency … within the United Nations” – in fact, it is a fully autonomous
organization. The Preamble of the Charter of the OAS affirms that the American
States are convinced “that representative democracy is an indispensable condition
for the stability, peace and development of the region”. Among the goals of the
OAS, Article 2 of the Charter lists “to strengthen the peace and security of the
continent … to promote and consolidate representative democracy, with due respect for the
principle of nonintervention … to prevent possible causes of difficulties and to ensure
the pacific settlement of disputes that may arise among the Member States … to
provide for common action on the part of those States in the event of
aggression”, etc.
The principle of non-intervention and the Cold War were serious obstacles
to the real development of a new stage of inter-American cooperation, most of
44 GLOBAL ADMINISTRATIVE LAW: THE CASEBOOK
3. Analysis
coups in Venezuela (2002) and Honduras (2009). The latter country had its rights
as a Member State suspended between 2009 and 2011. Other developments, e.g.
in Venezuela, have been more difficult to scrutinize in the light of the Charter.
The Declaration of Florida is more interesting for the purposes of global
administrative law. In particular, the Secretary General of the OAS has been
tasked with preparing a review of the implementation of the Inter-American
Democratic Charter since 2001, and devising “proposals for timely, effective,
balanced, gradual initiatives for cooperation, as appropriate, in addressing
situations that might affect the workings of the political process of democratic
institutions or the legitimate exercise of power”. In 2006, the OAS Secretariat for
Political Affairs (SPA) was created in order to promote democracy and good
governance, and to manage political crises in the Americas. The SPA has a
tripartite structure: its internal branches are the Department of Electoral
Cooperation and Observation, the Department of Sustainable Democracy and
Special Missions, and the Department of State Modernization and Governance.
According to the OAS website, the SPA “coordinates the OAS electoral
missions, develops projects to consolidate democratic governance through
cooperative work with legislatures and government, political parties… and civil
society organizations”. It also “provides advice and assistance in the
modernization of electoral laws, civil and electoral registries, and civil
administration”. Finally, it cooperates with the countries in the region in the
management of crisis or post-conflict programmes.
Some other initiatives are worth recalling. The Inter-American Convention
against Corruption of 1996 expressed a strong commitment to “the combating of
every form of corruption in the performance of public functions” as a necessary
condition for representative democracy. A Mechanism for Follow-Up on its
Implementation (MESICIC) has been established. The Secretariat for External
Relations (SRE) has initiated an exchange of contacts and information with
American non-governmental organizations. The OAS Secretariat of Legal Affairs
(SAJ) has elaborated a collection of Recommendations on Access to Information,
which the Inter-American Court of Human Rights has characterized as a
fundamental human right (see the Claude Reyes case of 19 September 2006).
Following this, the Permanent Assembly of the OAS finally adopted a Model
Inter-American Law on Access to Information in June 2010, which contains
guidelines for legislators on the continent.
VII. GLOBAL DIMENSIONS OF DEMOCRACY 47
The Inter-American Democratic Charter has played a crucial role in altering the
balance between promotion of representative democracy in the Americas and the
principle of non-intervention, both of which were founding principles of the
Inter-American System (think, for example, of Woodrow Wilson’s assumptions
about the American system, the Tobar doctrine of non-recognition of
governments installed by coups, and the anti-colonial heritage of the Americas).
The balance has shifted towards the promotion of democracy since the 1990s –
but in a problematic way.
The definition of democracy as a fundamental right and the decision to
treat coups and more subtle threats for democracy equally were very important
innovations. Moreover, democracy became a condition of OAS membership –
which, before the elaboration of the Charter, was much less clear.
Nevertheless, the Charter is remains somewhat vague on what an
“interruption” or an “alteration” of the democratic order is, and provides for
very weak enforcement mechanisms. Perhaps this is an ongoing effect of the
typically international framework in which it was drafted. Another possible
reason for this weakness of the OAS is the difficult coexistence of the United
States and the Latin American countries: the OAS General Assembly, for
instance, recently refused to adopt a proposal, advanced by the U.S., to create a
permanent body to monitor the state of democracy in Member States. That body
could have organized hearings with trade unions and civic groups in order to
collect information on the exercise of public power throughout the Western
Hemisphere. Thus, the organs of the OAS may adopt measures to combat
alterations of the democratic order in a Member State only if the other Member
States ask them to do so.
More encouraging signals can be found in the activity of some of the
internal divisions of the OAS, attempting to put in place the preconditions for
the establishment of democratic regimes by means of consultations with civic
groups, electoral missions, elaboration of model legislation, etc. These trends
seem to indicate that the principle of non-intervention in the internal affairs of
Member States has been significantly eroded.
As some scholars have noted, however, disagreement exists over what sort
of democracy citizens of the American States are entitled to. In the interim, the
international law tools devised in the Inter-American system should be limited to
the hard core of the elements of formal democracy set out in the Inter-American
Democratic Charter. The meaning of democracy was increasingly questioned in
the years after 2001: representative democracy and the independence of the
judiciary were both undermined by the rise of direct, plebiscitary participation
48 GLOBAL ADMINISTRATIVE LAW: THE CASEBOOK
5. Similar Cases
6. Further Reading
(http://blogs.ubc.ca/cameron/2011/09/11/the-inter-american-
democratic-charter-and-the-evolution-of-democracy-in-latin-america-
strengths-weaknesses-and-recommendations/);
f. S. CASSESE, “Global Standards for National Democracies?”, Rivista
trimestrale di diritto pubblico 701 (2011);
g. E. DANNENMAIER, “Trade, Democracy, and the FTAA: Public Access to
the Process of Constructing a Free Trade of the Americas”, 27 Fordham
International Law Journal 1066 (2004);
h. E. LAGOS, “Organization of American States”, International Encyclopedia of
Laws – Intergovernmental Organizations;
i. A.F. PEREZ, “Mechanisms for the Protection of Democracy in the Inter-
American System: Lockean vs. Aristotelian Constitutions”, The Catholic
University of America, Columbus School of Law, Legal Studies Series, WP
no. 2007-2;
j. T.D. RUDY, “A Quick Look at the Inter-American Democratic Charter of
the OAS: What Is It and Is It ‘Legal’?”, 33 Syracuse Journal of International
Law and Commerce 237 (2005-2006);
k. S.J. SCHNABLY, “The OAS and Constitutionalism: Lessons from Recent
West African Experience”, 33 Syracuse Journal of International Law and
Commerce 263 (2005-2006);
l. C. SCOTT, “A Perspective from Honduras’ Civil Society Truth
Commission: Speaking notes for a presentation to the March 9, 2011,
Hearing on Honduras Convened by the Standing Committee on Foreign
Affairs, House of Commons, Canada”
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1788572).