Can International Organisations Help to Stem Democratic Decay? (I-CONnect Column)

—Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

What role can international organisations play in addressing state-level democratic decay? (i.e., the incremental degradation of the structures and substance of liberal constitutional democracy).[1] This question is at the forefront of my mind as I write, having travelled from the continent-wide African Judicial Dialogue in Tanzania[2] last week – convened by the African Court on Human and Peoples’ Rights under the aegis of the African Union – to attend a three-day seminar in Florence on the role of regional and international organisations in protecting liberal democracy in Europe, Latin America and Africa against a rising tide of illiberalism.[3]  An Executive Training Seminar organised by the School of Transnational Governance at the European University Institute, the seminar brings together high-level policy actors, leading scholars, and practitioners across the three regions, providing a much-needed opportunity to examine this issue in depth.

Intervention by international organisations to protect domestic democratic orders is widely accepted, at least on paper. Such mechanisms are found in (but are not limited to) the EU, Council of Europe, Organization of American States (OAS),[4] MERCOSUR, ECOWAS, the Commonwealth and La Francophonie.[5] However, serious challenges beset their use. Look to Poland last weekend, as Independence Day celebrations brought an outpouring of far-right extremists on the streets, carrying the fascist falanga symbol and chanting chilling slogans: “Pure Poland, white Poland!” and “Pray for Islamic Holocaust”.[6] As I and others have repeatedly observed,[7] that anti-democratic ebullience has been helped by the foot-dragging and dogged insistence on ‘dialogue’ by the EU’s executive arm, the European Commission, despite an increasingly sharp authoritarian turn by the governing PiS party since entering government in late 2015.

Indeed, despite a somewhat forced narrative that centrist democratic liberalism has enjoyed a resurgence in Europe – invoking the election of Macron and re-election of Merkel – pan-regional trends show increasing gains by anti-democratic forces deeply rooted in national crises but surely emboldened by the dilatory EU response to backsliding in Hungary and Poland in particular: last weekend also witnessed the rebirth of Silvio Berlusconi as a political force in Italy, his Forza Italia Party winning sweeping gains in Sicily’s regional elections in coalition with two far-right parties, the Liga Nord and Brothers of Italy.[8]

Casting our gaze to Latin America, the OAS has had its work cut out of late in addressing serious democratic backsliding. In particular, Secretary General Luis Almagro has been admirably forthright in calling out the dramatic decline of democracy in Venezuela, producing a report in May 2017 stating: “Citizens have been left entirely at the mercy of an authoritarian regime that denies them their most basic rights.”^[9] However, it has proven difficult to galvanise real action by OAS member states.[10] In Africa, it is recognised that the AU has had some success in spurring a paradigm shift to non-acceptance of the legitimacy of unconstitutional power grabs (it will hopefully assist Zimbabwe, where a coup d’état appears to have taken place yesterday[11]). Yet, the OAS and AU, like the EU, have proven unable to address subtler destruction of democratic orders. Many states, viewed from the outside, present liminal cases that cut against the building of cross-state consensus required for effective remedial action at the international level: a debate rages in Brazil, for instance, about whether the democratic system is truly under threat or simply in the throes of painful reform (your columnist rests in the former camp).[12] Economic progress and stability has partly covered President Kagame’s slow strangling of Rwanda’s post-1994 democracy in its cradle.[13]

How we assess these organisations’ effectiveness also depends partly on how we characterise them. If we perceive them as being ‘constitutional’ in nature (most explicitly seen in the European and Central American (SICA) contexts) we may have high expectations that they can wield some form of veto power, capable of strident intervention against the degradation of democratic rule. However, this is to expect too much and overlooks the subtler potential of intervention: Polish scholars, for instance, have suggested to me that more robust EU action in Poland would evidently not itself be a full solution, but could help to shore up liberal democracy by bolstering the more moderate wing of the governing PiS party and, more broadly, raising concerns of international ‘shaming’ among the electorate, who remain somewhat sensitive to such issues.

Of course, the response for some states is simply to leave – Venezuela decided to withdraw from the OAS in response to the Organization’s declaration in April that the Maduro regime had altered its constitutional system in violation of the Inter-American Democratic Charter.[14] Zimbabwe left the Commonwealth in 2003, following suspension for the distorted elections of 2002.[15] The Polish government declared in 2016 that it would no longer cooperate with the Council of Europe’s Venice Commission.[16] However, as regards the EU, Brexit has starkly revealed that leaving is not straightforward, and there appears little stomach for this option in Warsaw or Budapest, for all their anti-EU rhetoric. Economic leverage matters, too. Remedial action is turning from ‘values talk’ to ‘money talk’, i.e. tying conditions to EU aid as a disciplining measure.[17] Other organisations do not have quite the same leverage, but can target specific actors (e.g. by freezing diplomatic bank accounts).

The Florence meeting is helping to address four key knowledge barriers. First is the challenge of better understanding how these systems work, and how they should work, against the fast pace of real-world developments.[18] Second is more fully understanding how serious epistemic limits and different understandings of what democracy itself means (as well as cognate concepts such as ‘rule of law’ and ‘constitutional order’) hamper international action against contemporary threats to democracy, which tend to be more insidious and subtle than the coups d’état of yesteryear. Third is whether meaningful lessons can be learned from cross-system comparison: there is currently limited comparative analysis of international mechanisms,[19] which vary widely but which also overlap. Fourth is limited interaction between scholars and policymakers.

The Florence meeting provides a useful way of moving beyond any view of international organisations as monoliths to achieve a finer-grained appreciation of how different organs can take varying stances and play diverse roles, ranging across overt political pressure, diplomatic good offices behind the scenes, and (for some systems, in an often oblique manner) judicial intervention by regional courts. Beyond the formal framework for intervention, we can hopefully discuss how much effective intervention rests on the leadership and political nous of international organisations’ personnel, especially at the top, but also those further down the ladder charged with concrete implementation of interventions. A raft of additional normative questions remain. Are some states simply lost causes? Should regional organisations stay engaged with states that have snuffed out their democratic systems, playing a long game in the hope that democratic forces will return with renewed force, or does this simply provide cover to hybrid authoritarian regimes? When to choose stridency and stigma versus subtlety and softness? How do we justify intervention in principle and address the common claim that intervention is simply illegitimate domination of hegemonic powers (e.g. EU, US)?

Serious questions for serious times. Hopefully the Florence meeting will be the first of many.

Suggested citation: Tom Gerald Daly, Can International Organisations Help to Stem Democratic Decay? Int’l J. Const. L. Blog, Nov. 16, 2017, at: http://www.iconnectblog.com/2017/11/can-international-organisations-help-to-stem-democratic-decay-i-connect-column/

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[1] This is the thumbnail definition I have been using for some time. See the author’s previous I-CONnect columns, which have all focused on the topic of ‘democratic decay’. For a fuller conceptual framing, see TG Daly, ‘Diagnosing Democratic Decay’, conference paper, Comparative Constitutional Law Round-table, UNSW Law School, Sydney, 7 August 2017 http://bit.ly/2v1QpQB.

[2] Third Continental Judicial Dialogue, ‘Improving Judicial Efficiency in Africa’, Arusha, Tanzania, 9-11 November 2017 http://bit.ly/2jo7ZKx.

[3] ‘Protecting Liberal Democracy in Illiberal Times: Policy Experiences from Europe, Latin America and Africa’, European University Institute (EUI), Florence, 15-17 November 2017 http://bit.ly/2i2jrHr.

[4] One of my fellow participants at the EUI meeting, Micha Wiebusch, has produced an excellent overview of the EU, OAS and AU systems: M Wiebusch, The Role of Regional Organizations in the Protection of Constitutionalism (International IDEA, July 2016) http://bit.ly/2yZJ4nJ.

[5] See e.g. A Banerji, ‘The Commonwealth of Nations: A Force for Democracy in the 21st Century?’ (2008) 97 The Round Table 813. A more sceptical take is R Colville, ‘A Place to Stand: The Problems and Potential of the Commonwealth Ministerial Action Group’ (2004) 93(375) The Round Table 343. See also A Diouf, (2010). ‘L’action politique de la Francophonie’ (2010) 55(4) Géoéconomie 15.

[6] M Taylor, ‘‘White Europe’: 60,000 nationalists march on Poland’s independence day’ The Guardian 12 November 2017 http://bit.ly/2zDldHr.

[7] See, e.g., L Pech and K Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) Cambridge Yearbook of European Legal Studies 1.

[8] ‘Berlusconi makes comeback in Italy’ euobserver 6 November 2017 http://bit.ly/2A27aOA.

[9] See p.2 of the updated report of the OAS Secretary General, issued on 14 May 2017: http://bit.ly/2nsAODa.

[10] Although an emergency session of the OAS Permanent Council was convened on 23 June 2016, no decision as to further action was taken amidst serious disagreement and a hope that dialogue and diplomacy might yet yield results. This pattern of inertia continued throughout 2016 and into 2017, despite the spiralling crisis and clear intransigence of President Maduro.

[11] M Dzirutwe, ’Zimbabwe’s army seizes power, Mugabe confined but “safe”’ Reuters 15 November 2017 http://reut.rs/2j062Ah.

[12] See TG Daly, ‘Public Law and the Puzzle of Democratic Decay in Brazil’, Law and Society Association (LSA), Mexico City, 23 June 2017 http://bit.ly/2zK7EpH.

[13] See e.g. A Sundaram, Bad News: Last Journalists in a Dictatorship (Bloomsbury Publishing, 2016).

[14] ‘Venezuela to withdraw from OAS, denounces campaign by Washington’ Reuters 27 April 2017 http://reut.rs/2A0FSbx.

[15] See Colville, ‘A Place to Stand’ (n 5).

[16] ‘Polish gov’t to ‘end cooperation’ with Venice Commission?’ Radio Poland 16 October 2016 http://bit.ly/2zJLcgB.

[17] See M Peel and A Barker, ‘Putting a price on the rule of law’ Financial Times 13 November 2017 http://on.ft.com/2hwTiV7. Thanks to Laurent Pech (also attending the Florence meeting) for bringing this to my attention.

[18] Information on the EU is the fastest-growing. See, for instance, the excellent recent edited collection: C Closa & D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2016).

[19] This is changing. See e.g. Micha Wiebusch’s report for IDEA (n 4).