Strasbourg, 12 June 2014 GT-TD(2014)2
Item 4 of the agenda
EUROPEAN COMMITTEE ON DEMOCRACY AND GOVERNANCE
(CDDG)
WORKING GROUP FOR THE PREPARATION
OF A REFERENCE TEXT ON DEMOCRACY
(GT-TD)
CONCEPT PAPER
WITH A VIEW TO PREPARING A FEASIBILITY STUDY
ON A POSSIBLE REFERENCE TEXT ON DEMOCRACY
Secretariat Memorandum
prepared by the
Directorate of Democratic Governance
Democratic Institutions and Governance Department
________________________________________________
Introduction
The Concept paper in attachment aims at providing the Working group with some initial thoughts on the various elements included in the mandate given to the CDDG by the Committee of Ministers (GT-TD(2014)1). Members of the Working group are invited to consider the reflections developed in the concept paper as a contribution towards the identification of the considerations to be developed in the comprehensive document by the Secretariat and the initial draft for an opinion to be adopted by the CDDG.
Action required
Members of the Working group are invited to discuss the elements of the mandate in the light of the Concept paper hereafter.
CONCEPT PAPER
WITH A VIEW TO PREPARING A FEASIBILITY STUDY
ON A POSSIBLE REFERENCE TEXT ON DEMOCRACY
1. The European Committee on Democracy and Governance (CDDG) has been entrusted by the Committee of Ministers, inter alia, with the following:
“On the basis of a comprehensive document by the Secretariat, advise the Committee of Ministers on the necessity, purpose, scope, feasibility and budgetary and workload implications of the preparation of a reference text bringing together existing principles and standards of democracy, intended for programming purposes and, if the advice is positive and the Committee of Ministers agrees, prepare such a draft reference text”.
During its 1st meeting (Strasbourg, 3-4 April 2014), the CDDG decided to create a Working Party in order to help with the implementation of this task by elaborating a draft feasibility study dealing with all elements as enumerated in the CDDG Terms of Reference. The Working Party is to hold a meeting on 19 June 2014, during which it will discuss the aforementioned points and any question that might arise. The Working Party will have then to finalise a draft feasibility study dealing with these points and prepare a preliminary draft opinion subject to examination and adoption by the CDDG in November 2014.
2. Based on this framework, the author of this concept paper[1] was mandated by the Council of Europe (CoE) to elaborate an argumented concept paper, which will serve as a basis for the elaboration of a draft feasibility study and feed the discussions of the Working Party. The paper aims to discuss all conceptual and methodological issues and provide proposed approaches for the elaboration of a reference text on democracy.
Some reflexions on terminology and concepts of democracy
3. In the first place, the present paper aims to analyze the two different concepts of democracy («... a reference text … on democracy ...»). This is so because the meaning of democracy is encountered both at the CoE and other international organizations (see, for instance, Boutros Boutros-Ghali, Agenda for democratization, United Nations, 1996) under two basic concepts: the ideal of democracy and the practice of democracy. While the first is related to the perfect democracy (the desirable democracy), the second refers to the contemporary status of democratic governance (the actual democracy). Realizing the difference between these two versions, in his recent report entitled “State of democracy, human rights and the rule of law in Europe” [May 2014, SG (2014)1], CoE Secretary General distinguishes “democratic culture” from “democratic institutions”, while in his Agenda for Democratization, the former UN Secretary General distinguishes “democratic society” from the “right to democratic governance”. Quite characteristically, in its Final 1996 Activity Report, the project group on «Human Rights and genuine democracy» (CAHDD) stated that «Both the Council of Europe’s Statute and the Preamble to the European Convention on Human Rights speak of “genuine” and “effective” democracy ...».
4. Both versions raise a series of questions. Nevertheless, the Committee of Ministers seems not to have adopted any version: according to the mandate, the CDDG is to advise the Committee on the feasibility of “a reference text bringing together existing principles and standards of democracy”. In other words, the CDDG was asked by the Committee of Ministers to elaborate on the two versions of democracy, the “desirable” and the “actual” one under the condition that they are “existing”. But the difficulty remains: “existing” where? In the context of both the UN and the CoE? Or, in the context of European institutions (CoE, European Union and Organization for Security and Cooperation in Europe)? Or, finally, in the context of the CoE and its member-States? Before giving an answer to the above dilemma, it would be very helpful to clarify the meaning and the distinction, if any, between the “principles of democracy” and the “standards of democracy”, within CoE’s legal order. Because – a very important notice – the CDDG was ordered by the Committee of Ministers, a Council of Europe’s statutory organ.
5. Beyond any doubt, the Statute of the Council of Europe (1949) is the most persuasive and authentic text with regard to the will of CoE’s founding States. According to this basic text, democracy is one of the three core principles of the Organisation, along with the enjoyment of human rights and fundamental freedoms and the rule of law. For this very reason, the acceptance of these three principles remains a condition for third countries wishing to join the CoE or countries wishing only to become observers. On the other hand, according to the Preamble of the CoE Statute, (“genuine”) democracy is also composed by three principles, the rule of law together with individual freedom and political liberty. Furthermore, it seems that while “the principles which form the basis of all genuine democracy” (1949 Statute, recital 3 of the Preamble,) are the rule of law, individual freedom and political liberty, the principle of (effective) democracy, together with the principles of human rights and rule of law are the decisive criteria for membership to the CoE. Following the above, on the basis of the distinction between perfect and actual democracy (or genuine and effective one), we can consider, for the needs of the present paper, that the principles are the values of perfect democracy, values shared by all CoE member-States («the common heritage», recital 3 of the preamble of Statute). On the contrary, the standards of democracy are the common denominator of democratic governance (actual democracy), the minimum conditions for membership to the CoE.
6. Then, going back to the question of “existing principles and standards of democracy”, we can conclude that our reasoning does not concern the United Nations, because as it is widely known, the word democracy is not included in the UN Charter. In other words, it does not constitute “common heritage” or condition for the accession of new member-States to the UN. On the other hand, given the fact that all 28 member-States of the European Union are already members of the CoE, it is common sense that these two international organisations share a similar approach. This does not apply to the Organization for Security and Cooperation in Europe given that its member-States have not been all members of the CoE, and mainly because this international organization seems to have adopted a unilateral meaning of democracy, that of “desirable democracy”.
7. The foregoing overviews are not sufficient to allow the drawing of a list of key democratic principles and standards accepted by the Council of Europe, let alone a definition. At best, they give some indirect impressions of the meaning of democracy, by identifying (only) some areas of activity of the Council of Europe, which are deemed relevant and important in democracy terms. However, some first conclusions can be drawn concerning the Council of Europe’s understanding of the concept of democracy:
a) the principles of democracy are the values shared by member-States, the “common heritage”. They serve as CoE’s core-objective, i.e. the achievement of ideal democracy. Theoretically, they can be found in every text adopted or approved by CoE organs, but, in practice, there is only one text, the Statute, which gives strong indication of what they are serving;
b) the standards of democracy are the common minimum denominator of democratic governance. They can be found in texts adopted or approved by the Committee of Ministers, such as Council of Europe treaties, recommendations and resolutions, Parliamentary Assembly and Congress resolutions, reports and conclusions delivered by the Council of Europe Commissioner for Human Rights, texts adopted by the Venice Commission, ECtHR case-law and other relevant sources;
c) furthermore, democracy seems to be, at the same time, a value and a distinct area of activity for the Council of Europe; it is part of a common heritage and a common future, but also a field of work for the CoE in order, either to check the respect of standards by member-States, or work with member-States towards perfect democracy.
About a “reference text”
8. The aforementioned conclusions could give some answers to the following questions with regard to the task entrusted by the Committee of Ministers to CDDG: which is the necessity, purpose, scope, feasibility and budgetary and workload implications of the preparation of a reference text bringing together “existing principles and standards of democracy”? But before answering these methodological questions, we should first clarify an issue related to the “reference text”. What is a reference text? Is it a comprehensive set of democratic guarantees or a compilation of principles and standards already proclaimed by the organs of Council of Europe? The answer cannot be categorical. The mandate given by the Committee of Ministers does not specify which of the two aforementioned versions should be taken into consideration when preparing the “reference text”. It is clear that the first version of the reference text is linked to the concept of “perfect democracy”, while the second refers to “actual democracy”. The drafting of the first version of “reference text” requires an original work performed by a statutory organ of the Council of Europe. The text in question will present all these principles, which, ideally, embrace democracy. On the contrary, the paper which concerns the preparation of a compilation of principles and standards already proclaimed, is a quite simple, scientific (and not necessarily political) work, which does not require the active participation of a CoE statutory organ. Which of the two versions will prevail or whether both versions will be finally chosen, is a question that will be answered following the research into the necessity, purpose, scope, and feasibility of such a reference text.
9. The term “democracy” has been systematically used in major political documents of the Council of Europe, as well as in numerous legal instruments such as Conventions and Recommendations. The three Summits of Heads of State and Government have resulted in Declarations and Plans of Action underlining the importance of democracy as central part of the Council of Europe’s mission. At best, they give some indirect impressions of the meaning of democracy, by identifying (only) some areas of activity of the Council of Europe, which are deemed relevant and important in democracy terms. It would be wrong to assume, for example, that all democracy-related activities of the Council of Europe are covered under the existing activities of DGII-Democracy or that the existing activities of DGII-Democracy concern only democracy-related activities. The difficult process of translating shared values into operational activities designed to preserve and promote democracy in and across member-States will, probably, be greatly facilitated by a common reference text.
10. Turning to the necessity of a reference text bringing together principles and standards of democracy, the purpose of the exercise would be to collate in a modern – single – reference text the standards of democracy. The use of this text will be internal: the text will serve as a guide for the future activities of DGII-Democracy but also as a compilation of standards of democracy for the use of the Council of Europe in general.
11. The scope of a reference text would be finally for the Committee of Ministers to decide. The CDDG could discuss the potential interest (need) for a declaratory document concerning the principles of democracy (for adoption by the Committee of Ministers), to be used as a «road map» for future membership in the CoE and also as a basis for dialogue with emerging democracies in other regions.
12. Concerning the feasibility of drafting such a reference text it will be necessary to ascertain what human and other budgetary resources would be needed for this task. Estimates can be made by the Secretariat in the light of the options made in the draft opinion about the necessity, feasibility and scope of a possible reference text.
Conclusion
13. To conclude, the two versions of democracy, the genuine (perfect) and the effective (actual) one, are all proclaimed to the Statute of the Council of Europe and provided to the major political documents of the Council of Europe. The first version is related to the principles-values of democracy while the second gathers the common standards of democracy encountered in all 47 member-States. Nevertheless, there is no reference text for both of them or even for one of them. The drafting of a reference text bringing to together principles and standards of democracy will provide, in particular, an important guide for the future activities of DGII-Democracy.
[1] Mr Yannis Ktistakis, Assistant professor of public international law, Democritus University of Thrace (Komotini, Greece) & Boğaziçi University (Istanbul, Turkey).