The Twentieth Corbishley
Lecture - 1996
Securing the Future of Democracy
by Audrey F. Glover
FOREWORD by the Chairman of the Wyndham Place Trust
This 20th Corbishley Memorial lecture deals with the medium and long-term consequences of the collapse of the Soviet Empire in Central and Eastern Europe. The remarkably quick and bloodless revolutions of the latter half of the 1980’s left a vast area of Europe from St Petersburg to Sofia and from Warsaw to the Urals and beyond, bereft of one firm ideological direction. Its replacement by a viable alternative ideology is taking longer.
The role of the Organisation for Security and Co-operation in Europe in the building up of strong and dynamic democracies in Central and Eastern Europe is crucial. In this work its Office for Democratic Institutions and Human Rights is at the sharp end. The Trustees were concerned that this work was too little known in Western Europe. They therefore invited Ambassador Audrey Glover, the Director of the Office, to explain its work and the conditions making for success or failure. The Trustees were particularly interested in the role of the Office in the development of religious liberty and freedom of speech in the countries of Eastern and Central Europe.
Ambassador Glover has fulfilled this brief admirably in this lecture. The Trustees are grateful to her and hope that its publication will contribute to making this crucial, if unspectacular, work more widely known. George Wedell
SECURING THE FUTURE OF DEMOCRACY
It is a great privilege for me today to present the twentieth Corbishley Memorial Lecture. Although I never met Father Corbishley I do have some connections with the church with which he was associated for so many years. I was married there. My two children who were born in England were baptised there and two of my children made their first communion at Farm Street. So in addition to being an honour it is also a very great pleasure for me to address you today on the issue of securing democracy. I will limit my remarks to Europe as that term is understood in the Organisation for Security and Co-operation in Europe, namely from Vancouver to Vladivostock.
The collapse of the Soviet Union is regarded as the triumph of democracy. Years of totalitarian rule were swept aside and were replaced overnight with the commitment to introduce the way of life that it has taken the west centuries to develop - democracy. The commitment to democracy was made in many instances without any clear understanding of what the term meant. When the initial euphoria died down it was realised that democracy does not spring up immediately or automatically.
Many perhaps were a little naive and thought that the transition would come about quickly. But it soon became clear that attitudes and institutions cannot change with the snap of the fingers and that there were not many within the various countries who were equipped to bring about the change. It also became very clear therefore that the introduction of democracy was something that had to be worked at progressively, slowly but surely. Democracy takes time to build and much vigilance and patience has to be expended in the process.
There are of course many institutions, organisations and Non-Governmental Organisations who are at present involved in introducing democracy in countries which had previously never had any experience of it. The main institutions working in Europe are the Council of Europe, the United Nations and the Organisation for Security and Co-operation in Europe, which until December 1994 was the Conference for Security and Co-operation in Europe.
Although younger than most institutions, the OSCE is particularly well placed to assist in bringing about the transition from totalitarianism to democracy because of its three basic components namely security, economics and human dimension which go back to the initial negotiation of the Helsinki Accords and the three baskets. Basket I which related to European Security, BAsket II which was concerned with Economic Issues and Basket III which dealt with Co-operation in Humanitarian and Other Fields. Initially the work of the CSCE was kept separate, with security on one side, the human dimension on the other, and economic issues lost somewhere in the middle. However, at the Second Helsinki Meeting in 1992 the participating States said, and I quote, "The protection and promotion of human rights and fundamental freedoms and the strengthening of democratic institutions continue to be a vital basis for our comprehensive security." In this way the CSCE participating States recognised that human dimension issues are intertwined with security issues. At the Budapest meeting in 1994 the CSCE States said that "Respect for human rights and fundamental freedoms, democracy and the rule of law is an essential component of security and co-operation in the CSCE region. It must remain a primary goal of CSCE action".
Before we look at how we try to secure democracy we should perhaps consider the precepts which the OSCE is trying to promote and protect with its use of the term "human dimension". Human dimension in the OSCE encompasses in addition to human rights in the classic sense, respect for the rule of law, the promotion of democratic institutions, the protection of minorities and humanitarian principles. All of these aspects if taken together produce respect for the dignity of each individual in society which is the cornerstone of democracy.
The Human Dimension was redefined and expanded in a series of meetings on the Human Dimension, for example Copenhagen and Paris Summit 1990, Moscow 1991 and the second Helsinki Summit of 1992. The documents produced by these meetings contain human dimension commitments. They cover a very wide area. Not only are they concerned with the so called classic human rights such as the freedom of religion, freedom of association, freedom of speech, the enjoyment of one’s property peacefully and the holding of free elections. The commitments also extend and give particular protection in other international instruments. These include, for instance, journalists, migrant workers, the disabled and Roma. In the Copenhagen document the commitments in the field of protection of national minorities are more far reaching than in any other international instruments and form the basis of the work of the High Commissioner on National Minorities of the OSCE.
The standards are comprehensive but they also emphasise that the rule of law and political pluralism is as important in the OSCE as the respect for human rights. In the OSCE it is recognised that it is necessary to support and advance the principles of justice, which form the basis of the rule of law. This is to allow individuals to develop their personality and to live in dignity in a just and stable society.
We often hear it said about OSCE commitments that they are only politically and not legally binding as if this implies that they are of less importance. But is that the case? Should States pay attention to the OSCE commitments or can they ignore them? Given the lengths to which States go to ensure that they can support the language when drawing up commitments, I think that there is no question that States regard them as binding even though they are not drawn up in the form of international treaties. As it has been stressed many times, the fact the OSCE human dimension commitments are only political in character rather than legally binding should not be exaggerated. The Dutch lawyer, Peter Van Diyk, has observed that "a commitment does not have to be legally binding in order to have binding force. The distinction between legal and non-legally binding force results in the legal consequences attached to the binding force not in a binding force as such..."
Of course there is no international legal complaint machinery whereby individuals can bring complaints about the alleged breach of OSCE commitments in the same way as they can under the European Convention of Human Rights or the United Nations Covenant of Civil and Political Rights. But, in the OSCE, States are responsible to each other for their commitments. The violation of political commitments is as unacceptable to the international community as any violations of international treaties. It is also clear from the Helsinki Document that States are expected to bind themselves by implementing their OSCE commitments in their domestic law. The implementation of these commitments is monitored constantly and in different ways. For example, the monitoring of elections involves looking at the observance of many commitments. More than just how people vote. There are also different mechanisms which States can invoke if they consider commitments are not honoured, the most effective being the sending of special missions by the Chairman in Office and raising issues at the weekly meetings of the Permanent Council and the Senior Council.
The OSCE human dimension commitments are also different from other human rights commitments in another very important respect. Namely the human dimension commitments are not matters purely of the domestic concern of a State. The Preamble of the Moscow Document states quite clearly that participating States "categorically and irrevocably declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned". This sentiment was also emphasised again in the second Helsinki Document. It is clear that participating States have decided that the human dimension is vital for security and that, in order to bring about security, participating States can show their concern about the way States implement their human dimension commitments.
There is a further aspect of these commitments which it is also important to remember. The commitments and responsibilities which the participating States assume in the field of the human dimension apply equally and entirely to each and all of the participating States and to each and every person living in each State. The OSCE commitments are also different from international conventions in that States are bound by them as soon as they are adopted. There is no possibility of rejecting them or of entering reservations or taking time to ratify them. States are bound by them immediately. All the participating States are bound by all the same commitments and all are working from the same ground rules. This gives a strength to the OSCE which is unique from other international organisations. They have varying patterns of compliance with international conventions since not all of them notify all international conventions. The OSCE is a community of values. This means therefore that individual States have the responsibility to build democratic institutions and put into practice in their domestic law OSCE commitments.
Because of the community of values within the OSCE there is also a community of responsibility. Without any question of doubt the OSCE participating States have a moral and a political responsibility to help those States which at any point of time cannot solve the problems which confront them by themselves. This is because all of the participating States are in the OSCE together and no one is perfect. States which are confronted with problems, for their part, have the duty to seek assistance. The practice of States helping each other is a real one. Not only do the participating States assist each other in implementing their human dimension commitments but so do the institutions of the OSCE.
Since the collapse of the communist regimes the OSCE has developed various institutions to assist in the task of building security and democracy. There is the High Commissioner on National Minorities who enters into dialogues with governments about the situation of minorities in their countries in order to prevent potential conflict. He works in a quiet confidential manner assessing and defusing at the earliest possible stage situations involving national minorities. Through advice and recommendations he encourages the parties to pursue non-confrontational policies.
The OSCE has also established 10 Long Term Missions. Although their mandates are all different they each have a component which requires them to ensure that the human dimension is respected in the country in which they are situated and ensure the creation of democratic institutions.
The main institutions of the OSCE however which is concerned with securing democracy is the Office for Democratic Institutions and Human Rights, the successor to the Office for Free Elections. It is situated in Warsaw and I have the pleasure to be the Director. The ODIHR has the task of translating the grand principles set out in the OSCE documents into concrete realities and turning the universal standards into specific programmes. Implementation strengthens democracy and the rule of law and encourages the healthy growth of a public infrastructure. This includes bar associations, an independent judiciary, legal aid societies, human rights organisations and journalists’ guilds. These groups and others like them are the hallmarks of democratic societies.
The ODIHR is conscious that before States can implement their commitments they obviously have to know what these commitments are. By means of a series of seminars on human dimension issues the ODIHR offers information about them. Moreover these meetings have the aim of exchanging ideas. The ODIHR organises large and small seminars for all 54 participating States. The smaller, more focused seminars relating to issues in particular countries are a very effective way of achieving the Office’s objectives. Such gatherings also present a forum for NGOs, governments and international organisations to meet and mix freely. Numerous seminars are held in recently admitted participating States on a diversity of topics including constitutional law, citizenship and media. I have just come from a workshop in Azerbaijan on the Rule of Law.
It goes without saying that in order to educate it is necessary to publish and distribute documents on human rights. Although Russian may be the lingua franca for most of the newly admitted participating States, they would of course prefer to have copies of human rights instruments in their own languages. The ODIHR has therefore embarked on translating the OSCE human dimension commitments into local languages. To date we have translations in Latvian, Estonian, Georgian and nearly all the Central Asian languages.
Monitoring elections to ensure that they comply with OSCE commitments is a practical way to assist new democracies to establish a tradition of free elections and to assist in electoral administration. The ODIHR began in April 1991 with a mandate to assist the new European democracies in establishing a tradition of free elections and to assist in electoral administration and in writing electoral laws. It is considered that the endorsement by international observers of a democratically contested election which complies with domestic and international standards is essential for new governments.
Responding to this wave of elections in the new Europe, the Office co-operated with other institutions and established assistance programmes in countries holding elections. The Office covers parliamentary, presidential and local elections and also referenda on constitutional or other political issues. The Office has organised successful programmes in countries as divergent as Bulgaria, Poland, Albania, Romania, the Russian Federation, Georgia, Estonia, Latvia, Lithuania, the Republics of the Former Yugoslavia, Azerbaijan, Moldova, Kazakhstan, Ukraine, Hungary, Belarus and Kyrgyzstan.
The Budapest Summit in 1994 gave the ODIHR an increased mandate in relation to elections to enable more time to be spent in a country before, during and after an election. This is to ensure that the monitoring of an election could cover the complete process and be more like a film rather than a snapshot. Monitoring elections is not concerned just with polling day itself and the way that people vote. It is concerned with freedom of association, freedom of the press, freedom of expression and the right to form political parties. The ODIHR was also asked to provide a framework for co-ordination with other institutions and organisations who monitor elections to enable better co-operation in the field.
A document was produced at the beginning of 1995 which has formed the basis of the election operations since then. It has been refined in the light of the comments which the Office received and from its own experience. To carry out a bigger mandate of course requires additional resources. Realising that there would be reluctance to increase the staff of ODIHR the Office has asked States to second persons for the purpose of elections. The ODIHR relies on States providing long term and short term observers. The long-term observers should be in place for six to eight weeks before the election. From that number an on-site co-ordinator is selected who is in charge of the operation. The elections unit in Warsaw acts as a backup and assists the people in the field as and where necessary.
One of the main objectives of having an on-site co-ordinator and long term observers "in situ" in advance of polling day is that they can make contact with the electoral commission and study the policies of the different parties and monitor the registration process and the media. This means that they are in a position to give helpful information to the short term observers when they arrive.
It is now widely recognised that international observers play an important role in underpinning international standards of elections. In particular election observation has become an effective and invaluable service that is provided among OSCE participating States to promote and strengthen the democratic election process.
The ODIHR Rule of Law Programme has five objectives:
a. to strengthen the independence of the judiciary in emerging democracies;
b. to provide human and documentary resources and analyses of constitutions and draft laws for use by judges, judicial officials, lawyers, legal groups, media, Government and NGOs;
c. to monitor and analyse public policy, legislation and state practice affecting human rights and human dimension activities;
d. to create and sustain an international legal presence during human rights cases;
e. to conduct training programmes on Rule of Law subjects for jurists, lawyers, journalists, and the public in emerging democratic States.
ODIHR’s Rule of Law programme also collaborates actively with related bodies like the Council of Europe, European Commission for Democracy through Law, the United Nations and various courts, law associations, cabinet ministers, foundations and universities.
Following on from the Rule of law seminar which was held in Warsaw at the end of 1995 the ODIHR has concentrated its work on organising practical hands-on training programmes. For example, the Office has organised an ongoing programme for judges in Russia in conjunction with the Russian Supreme Court and the Judicial Academy.
The Office started a four part training programme in 1995 for prison officials in Georgia which involved not only lectures but bringing the officials to prisons in Poland where they worked alongside Polish prison guards. The next stages of the programme will be to assess the training and to see how the guards are implementing what they have learnt and for them to write a training manual for themselves. There is also a similar exercise with the border guards from Belarus in Poland in relation to the treatment of refugees. We have also held a similar programme in Poland for prosecutors who have a particularly difficult job in adjusting to the change of the prosecutor’s role in a democratic society.
Realising the role that the non-governmental sector plays in creating a civil society, particularly in the newly admitted States, the Office works very closely with NGOs and has done so from its inception. We are regarded as being NGO friendly. There are no criteria for NGOs to participate in the OSCE other than that they should not have terrorist associations. The Office facilitates exchanges of information between the Office and NGOs, and among NGOs, and maintains contact with NGO networks, inviting their participation in preparing and holding seminars and, also in election monitoring. Increasing numbers of groups are forming themselves into NGOs throughout the area and the ODIHR holds workshops to help such groups establish themselves as viable NGOs. As formerly closed societies become more open, groups of individuals associate and their presence is a barometer of a democratic society’s growth. They also have an important grass roots level role in relation to confidence building measures within different communities.
The Human Dimension Adviser and his assistant cover a very wide area. Soon after its establishment, the Office for Free Elections assumed broader responsibilities within CSCE’s human dimension mandate, foreshadowing the Office’s eventual transformation into the Office for Democratic Institutions and Human Rights and participated in several fact-finding missions to Bosnia-Hercegovina, Croatia, Former Yugoslav Republic of Macedonia, Montenegro, Slovenia and Serbia - including Kosovo and Vojvodina.
The human dimension section more than any other is responsible for giving assistance to the OSCE long term Missions which exist in Estonia, Georgia, Latvia, Moldova, Sarajevo, Tajikistan, FYROM, Assistance Group in Chechnya, Croatia and the Ukraine. There is also a Liaison Office in Tashkent. Part of the assistance is concerned with training mission members.
The human dimension section also assists States with establishing Ombudsmen and National Human Rights Institutions. This started with the training and briefing which was given to the Ombudsmen from Sarajevo in 1995. Advice has also been given to the Human Rights commission in Georgia and the Office has also been closely involved with the drafting of the Presidential decree for an Ombudsman in Tajikistan and Uzbekistan.
Initially there was some scepticism about setting up Ombudsmen in countries where the legal infrastructure was not in place. However it is now clear that in those countries where there is no means, as yet, whereby an individual can go to the courts over an alleged breach of his human rights by the State authorities, an Ombudsman can play a very useful role, provided that he is independent. Among the many functions that he can serve is as a safety valve. He gives individuals the opportunity to air their grievances about which he can make recommendations for improvements, with the authorities. He can also assist in educating the public and in raising their consciousness as to their rights.
Because of the growing interest in Ombudsmen by the OSCE participating States the Office is holding a series of round tables on Ombudsmen and is setting up a network of Ombudsmen to assist each other.
Responding to the concern among the participating States relating to the treatment of Roma and Sinti the Budapest Summit requested the ODIHR to establish a Contact Point for Roma and Sinti issues. This the Office has done.
The ultimate goal of the Contact Point is to assist participating States find constructive solutions for the problems that Roma face. The Contact POint for Roma and Sinti Issues will contribute to the efforts and the many existing initiatives aimed at improving the situation of the Romani people.
The non-confrontational approach of the OSCE embodies the working strategy of the CPRSI. That is to facilitate contacts and the exchange of information among OSCE institutions, intergovernmental and international organisations, governments of the participating States and non-governmental organisations. It also encourages the development of Roma and Sinti organisational capacity by assisting Roma and Sinti associations and organisations to co-operate among themselves.
The CPRSI collects and, upon request, disseminates information and documents on the implementation of human rights commitments related to Roma and Sinti - focusing on the discrimination and violence against them. The aim of the CPRSI is to raise the consciousness at a national level of the treatment of Roma and Sinti with the goal of each State having an Ombudsman or institutions concerned with Roma and Sinti issues. Because it is clear to the ODIHR that it is at the national rather than at the international level that assistance can best be given to Roma and Sinti. The ODIHR publishes every two months a Roma and Sinti Newsletter in English and Romanese.
An important development for the Human Dimension is its increasing involvement in the work of the Permanent Council. At the Budapest Summit the Ministers tasked the ODIHR to act as a clearing house for an exchange of information to assist in the integration of the human dimension into the work of the Permanent Council. To this end the ODIHR continues to collect and seek information regarding non-compliance with the commitments of participating States in the human dimension area. It also works with the Missions in order to receive regular reports on such issues and it includes in its clearing house data the findings presented. In it he country reports prepared by the United Nations and the Council of Europe. There are regular exchanges of information with non-governmental organisations. IN addition to providing the Permanent Council with information on a regular basis about its activities the ODIHR also provides reports on request about the implementation of commitments. Issues raised can be pursued further with round table discussions and bilateral consultations.
The ODIHR also has an early warning function and writes reports about issues in countries which give it cause for concern. It wrote one recently about a President who was deliberately ignoring judgements of the Constitutional Court with which he disagreed. As a result of our report the Chairman-in-Office dispatched an expert team to look into the legal situation who in their report to the Chairman-in-Office made recommendations for follow up action. The ODIHR also consults with the Chairman-in-Office on human dimension issues. It makes recommendations for bilateral follow up or action by the Troika or the Permanent Council. On the request of the Chairman-in-Office, the ODIHR may also undertake monitoring or fact finding missions.
I have spoken at some length about the ways in which the OSCE tries to secure democracy in Europe but now I would like to make a few comments about the future.
Firstly I think that the OSCE needs to pay more attention to the economic dimension in relation to those states who are coming through the transition. By that I do not wish to imply that economic, social and cultural rights are more important than civil and political ones or that states should wait until the economic situation is satisfactory before they implement their civil and political rights. But what I would say is that human rights cannot be developed in a vacuum. It is unrealistic to expect all judges to be honest when in many countries they earn no more than $5 per month. The participating States will need to do more to facilitate financial assistance to states through energising financial institutions and organisations and not abandoning the original CSCE economic basket.
In addition more needs to be done to bring the human dimension into the daily work of the permanent council of the OSCE which meets once a week in Vienna. It should not be an item on the agenda which is only brought up from time to time or when I or one of my staff are in Vienna. The PC should make a conscious effort to ensure that the human dimension aspect of all the issues that they are discussing are looked at and examined. In this respect better use could be made of the OSCE institutions and we could be called upon more regularly to participate in the work of the Council. Participating States repeatedly acknowledge the importance of the human dimension but they must ensure that this is a reality. The human dimension is the lifeblood of the Helsinki accords and without it the OSCE would be meaningless.
Before closing I would like to turn to Bosnia which was of course a priority for the OSCE this year and the subject of last year’s lecture. You do not need me to tell you what an enormous task the OSCE has taken on in this regard. Not only is the OSCE working on many different fronts but with a very difficult text in the negotiations of which we did not participate. But also with parties who are not always the most accommodating. In addition as so often happens we have had less resources than requested. Given all the difficulties that were faced I do not think that the OSCE has done too bad a job so far. It has been frequently said over the past few months that Bosnia was the big test for the OSCE with the implication that if Bosnia did not go well the OSCE would have no future. I hope that will not be the case. As I have already said I consider that the OSCE is a unique organisation which has much to offer. That is not just because I happen to work there. In fact my term of office will come to an end in April next year. But I consider that with its security dimension, its economic commitments and the human dimension it presents a complete package for effective peace, security and stability which no other organisation can provide. In addition the OSCE, because it does not have a heavy bureaucracy can also mobilise itself swiftly to respond to a crisis. The participating States however need to have the confidence and the commitment to recognise that the OSCE is an institution which can create the framework for peace and stability and give it the resources and the wherewithal to enable it to perform the tasks that only it can do to bring stability and secure democracy in Europe.