jueves, 23 de junio de 2016

Considerations for the Invocation of the Inter-American Democratic Charter (IDC)

Prepared by the Secretariat for Legal Affairs of the OAS, May 5, 2016.

The IDC, resolution of the OAS General Assembly, adopted on September 11, 2001 provides different pathways that allow it to be invoked. 

Article 17 enables any government of a member state to do so when it considers that its democratic political institutional process or its legitimate exercise of power is at risk, allowing it to request the assistance of the Secretary General or the Permanent Council. 

Article 18 authorizes the Secretary General or the Permanent Council to arrange for visits or other actions with the consent of the government concerned. 

Whereas Article 19 refers to situations of unconstitutional alteration or interruption of the democratic order; Article 20 describes the procedures to follow in the first case cited in Article 19In both situations there is neither a request nor consent of the government of the affected state.

A difficulty already noted by the previous Secretary General in a Report to the Permanent Council (CP / doc. 4184/07 of 4 April 2007) is related to the concept of "government". Articles 17 and 18 of the IDC refer to the "request of the government" and the "consent of the government." The Permanent Council and ultimately the General Assembly are the organs where governments are represented, and who decide what actions to take. In the current state of the law it seems difficult to accept that government officials other than those designated and accredited by the executive branch can represent that state in those organs. It is true that, in accordance with international law, all powers form the government (for example the Montevideo Convention of 1933) and that their actions generate international responsibility for the state; but it is no less true that domestic legal orders and national constitutions, give the executive branch, and not to other powers, the international representation of the state, which has been taken up and incorporated into international standards concerning diplomatic and consular relations or the adoption of treaties.

Therefore, in the absence of consent of the executive branch which does not allow pursuing the channels provided for in Articles 17 or 18, and not having an interruption of the democratic order, the only way is the application of Article 20

This route starts by meeting the following requirements:

• the condition to invoke it is that there is an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state of the OAS;
• the Secretary General or any Member State can invoke it;
the Permanent Council is the body that decides if there is an unconstitutional alteration of the constitutional regime and makes the decisions it deems appropriate.

The obvious question is what is understood by unconstitutional alteration of the constitutional regime

First it must be determined when there is an alteration. Articles 3 and 4 indicate what are the essential elements and components of the democratic order. There is an alteration when one or more of these elements or components listed in those articles are affected. In 2009, the Inter-American Juridical Committee affirmed that "the unconstitutional alteration of the constitutional regime that seriously impairs the democratic order" (arts. 19 and 20 of the IDC) are situations which must be seen in the light of validity of the essential elements of representative democracy and the fundamental components of the exercise of same” (CJI/RES. 159 (LXXV-O/09). 

However (art.20), the determination of when that alteration is serious is subject to the assessment made collectively by the Permanent Council. The Council makes its decision by the majority of the votes of the member states of the OAS (18 votes). This is a political assessment based on the elements subject to its consideration. The Council could:

• consider that there is no alteration, or
• that although it may exist it is not sufficient as to seriously impair the democratic order. In this case the procedure ends. Or it could
• consider that there is such alteration. 

In this last case it continues the procedure established in the subsequent paragraphs of article 20:

• undertake the necessary diplomatic initiatives, including good offices, to foster the restoration of democracy and in case they prove unsuccessful
• to convene a special session of the General Assembly according to article 20 paragraph 3 and 4 (the vote of two thirds –24-- of the member states are required).

The General Assembly could propose new diplomatic initiatives, and in this situation if it determines that there is an unconstitutional interruption of the democratic order, decide the suspension of the member State (article 21). We cannot confuse the “unconstitutional interruption of the democratic order” with the “unconstitutional alteration of the constitutional regime;” these are two different situations as established by article 19 that refers that both are “insurmountable obstacle to its government’s participation in session of the General Assembly…“. In the first scenario there is no government; in the second one, there is one, hence the procedure referred to in article 20 which details the possible actions before the national authorities. 

These are the legal options established in the Inter-American Democratic Charter for the Organization, its Permanent Council and its Secretary General in order to assist a member State when it is considered that its democratic political institutional process or its legitimate exercise of power is at risk.

Reference: S-009/16

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