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International Democracy Documents: A Compilation of Treaties and Other Instruments. Edited by Frithjof Ehm and Christian Walter. Leiden: Brill Nijhoff, 2015. 718 pages.

Published online by Cambridge University Press:  14 November 2016

MICHAEL PAL*
Affiliation:
Assistant Professor and Director, Public Law Group, Faculty of Law (Common Law Section), University of Ottawa

Abstract

Type
Book Reviews / Recensions de livres
Copyright
Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2016 

According to Freedom House’s most recent annual Freedom in the World report on the global status of political and civil rights, there are presently 125 electoral democracies out of 195 countries in the world. Footnote 1 The number of democracies has spiked dramatically since 1989, when there were only sixty-nine. With this trend towards democratization over the last twenty-five years, the majority of countries subscribe to some form of government that passes the minimum threshold for what counts as a “democracy.”

This global trajectory tells us little, however, about the lived experience of democracy in particular countries. One of the more influential and interesting trends in recent years in the study of democracy has been the attempt to define not only the quantity of countries falling into the category but also the quality of its global practice. The Freedom House report itself provides one such example. It categorizes all countries as either “free,” “partly free,” or “not free.” As of 2015, eighty-nine countries fell into the “free” category, which accounts for only 40 percent of the world’s population, as compared to fifty-five countries with 24 percent of the population in the “partly free” bracket, and fifty-one countries with 36 percent of the global population in the “not free” class. Footnote 2

In the academic sphere, the Electoral Integrity Project has been a leading, collective, scholarly attempt to rank the fairness of elections and democratic performance globally. Footnote 3 One of the contributions of the project has been to assess whether elections meet international standards through the introduction of an index of expert perceptions of electoral integrity (PEI). Footnote 4 For instance, of the forty-seven African democracies, the PEI index assesses Benin as the highest performing country with a score of sixty-eight (which is superior to those of Italy and the United Kingdom), and Ethiopia as the worst performer at only twenty-one (which puts it among the bottom performers in the world).

These attempts to rank the quality of democracy by civil society and scholarly groups rest on assumptions that challenge at least some traditional understandings of democracy. First, they draw no hard line between traditionally used typologies for democracies, such as liberal and social, or more current ones, such as established versus transitional. Second, they rest on the idea that it is both possible and desirable to apply common standards of democratic quality. The standards used are necessarily vague and general, such as “free” and “not free” or “electoral integrity.” These projects typically try to pour content into these terms by relying on internationally agreed upon standards. Pippa Norris defines electoral integrity, for example, by reference to “international conventions and global norms, applying universally to all countries worldwide throughout the electoral cycle.” Footnote 5 The application of these evaluative standards obviously raises questions about whether they can truly be said to capture the common aspirations of citizens around the world for domestic and international democracy or whether they actually reflect the values of a sub-set of the most powerful, established democracies.

It is in this context that it is most fruitful to consider Frithjof Ehm and Christian Walter’s International Democracy Documents: A Compilation of Treaties and Other Documents. Footnote 6 What exactly are the “international conventions and global norms” of democracy? One way of answering this question is to look at the characterization of the concept of democracy embodied in international documents.

Ehm and Walter’s book provides a helpful reference guide to the international documents related to democracy, ranging from the well known to the obscure. The most casual observers of international law and legal and political science scholarship on democracy will be familiar with foundational documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which are of course included in the collection. Footnote 7 Fewer will be intimately acquainted with the agreements related to democracy that have been promulgated by the Community of Democracies or the Inter-Parliamentary Union. The book is helpfully arranged into sections relating to global documents (mainly from the United Nations (UN)), transregional documents (for example, from the Commonwealth and La Francophonie), and regional documents. There is an overall introduction to the volume as well as a summary at the beginning of each section. These commentaries fall largely into the category of description. Those looking for critical approaches to international law will find relatively little to latch onto in these sections of the book, apart from acknowledgement of the contested nature of the term “democracy” and discussion of the instrumental uses to which democracy promotion has been put by powerful states, particularly during the Cold War.

The documents contained in the book will provide fodder for those seeking to answer questions about the global practice of democracy. I propose a few lines of inquiry here that are suggested by the documents as a whole and the commentary of the editors. First, is there truly consensus reflected in the international documents around a common set of standards by which we can evaluate and rank democratic performance? From the diverse sources they cover, Ehm and Walter identify several general principles of democracy that in their view are reflected in the documents: “1) human rights, 2) free and fair elections, 3) rule of law, 4) a multi-party system, 5) separation of powers, and 6) an independent judiciary.” Footnote 8 Whether this formulation sets out the necessary conditions for evaluating the presence or quality of democratic government will of course be contested. There are certainly lessons to be taken from these documents, however, for those researchers seeking to identify what the “international conventions and global norms” of democracy actually are, even if one disagrees with the specific conclusions drawn by Ehm and Walter from them.

Second, the documents the editors collect cover a mass of topics related to democratic best practices, from the general, such as the right to vote, to the granular, such as rules about casting ballots by mail or the registration of voters. Ehm and Walter suggest that, since 1989, variations among these source documents should be understood as being regionally derived, and their organization of the book reflects this view. Ehm and Walter’s set up for the book facilitates comparisons across all documents generated by specific bodies, such as the UN Educational, Scientific, and Cultural Organization or the Organization of American States. The book’s structure and the editors’ commentary provide less ground upon which to base other comparisons, such as across time or with regard to specific democratic practices such as the scope of the franchise. There may be further avenues for research about whether there is consensus or disagreement on specific elements of democratic practice cutting across the various drafting bodies. Organizing the material temporally or by specific topic may have encouraged readers to draw links other than those that are the primary focus of the authors.

Third, the documents in the volume raise questions about what vision each contains for how to protect democracy from interference or erosion. The 2015 Freedom House report is entitled Discarding Democracy: A Return to the Iron Fist, which suggests how tenuous the hold of democracy is in many countries. It underscores the live risk of backsliding, as has occurred in Turkey as a notable recent example. Footnote 9 The documents collected by Ehm and Walter indicate different emphases for how to protect democracy against retrenchment. Some instruments seem to focus on broad assertions of democratic rights as the central tool, such as the ICCPR, with its famous assertion in Article 25 of the “right and the opportunity … a) [t]o take part in the conduct of public affairs” and “b) [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.” Footnote 10

Other documents focus less on rights and more on the generation of a set of institutions in order to entrench democracy and go into great detail regarding institutional design to achieve this goal. The Council of Europe Venice Commission’s Code of Good Practice in Electoral Matters not only contains expansive rights protections but also, for example, insists upon an impartial body to apply election laws. Footnote 11 It contains detailed institutional prescriptions regarding the composition of election commissions (upon which most of the responsibility for administering democracy falls), the training of election commissioners, and the necessary restrictions on a government’s ability to interfere with the independence of the commissions. The Inter-Parliamentary Council’s Declaration on Criteria for Free and Fair Elections similarly contains references to an “independent and impartial authority, such as an electoral commission or the courts” to ensure electoral fairness and makes frequent reference to the non-partisan administration of electoral rules. Footnote 12 Rights and institutions are undoubtedly both necessary to protect democracy, but there is much to be explored in how international documents perceive the relationship between the two.

Fourth, the edited volume deliberately sets out to collect only international documents related to democracy. Readers who study democracy rather than international law, however, will find the lack of engagement with domestic constitution making in the commentary from the editors somewhat puzzling. Surely, the evolution of international standards has been shaped by expectations for democratic governance at the domestic level, which are at least partially reflected in constitutions or even quasi-constitutional documents such as statutes relating to elections. The understanding of democracy in international law should ideally not be presented as distinct from its domestic constitutional counterparts.

Overall, the editors of the volume have set high standards for the success of the book. In their introduction, they set out four main goals for the volume: (1) putting in one place the influential international documents on democracy; (2) indicating competing regional understandings of the concept of “democracy”; (3) serving as a blueprint for drafters of international documents; and (4) demonstrating the centrality of “democracy” to international law. Footnote 13 The volume succeeds in achieving its first goal of gathering the most relevant documents in one place, which will be welcomed by scholars and students. As to the second goal, whether the lens of regionalism is the most fruitful one through which to view the variations in international understandings of democracy remains an open question. The jury is also out on whether the volume will meet its aspiration of serving as a blueprint for drafters. Regarding the fourth goal, it seems incontrovertible that “democracy” has been an important subject of international documents. Assessing whether these documents have furthered democracy on the ground is of course a different matter. Whether the volume will eventually reach the lofty goals set by its editors remains to be seen, but they have put together a book that is a helpful reference for those wishing to engage with the treatment of democracy in international documents.

References

1 Arch Puddington, Discarding Democracy: A Return to the Iron Fist (New York: Freedom House, 2015) at 8.

2 Ibid at 7–8.

3 See Electoral Integrity Project, <http://www.electoralintegrityproject.com>.

4 Pippa Norris, Ferran Martínez i Coma & Richard W Frank, “Assessing the Quality of Elections” (2013) 24:4 J Democracy 124. For the most recent data, see Pippa Norris, Ferran Martínez i Coma, Alessandro Nai & Max Groemping, The Expert Survey of Perceptions of Electoral Integrity, PEI_4.0 (2016), online: Electoral Integrity Project <sites.google.com/site/electoralintegrityproject4/projects/expert-survey-2>.

5 Pippa Norris, “The New Research Agenda Studying Electoral Integrity” (2013) 32 Electoral Studies 563 at 564; Pippa Norris, Why Electoral Integrity Matters (New York: Cambridge University Press, 2014).

6 Frithjof Ehm & Christian Walter, eds, International Democracy Documents: A Compilation of Treaties and Other Documents (Leiden: Brill Nijhoff, 2015).

7 Universal Declaration of Human Rights, GA Res 217 (III), UN Doc A/810 (1948); International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 [ICCPR].

8 Ehm & Walter, supra note 6 at 22.

9 Puddington, supra note 1.

10 ICCPR, supra note 7, art 25.

11 Council of Europe, European Commission for Democracy through Law (Venice Commission), Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report, Doc CDL-AD (2002) at 20, s 3.1, online: Council of Europe <http://www.venice.coe.int/webforms/documents/CDL-AD(2002)023rev-e.aspx>.

12 Inter-Parliamentary Council, Declaration on Criteria for Free and Fair Elections (26 March 1994) at s 4(9), online: Inter-Parliamentary Union <http://www.ipu.org/cnl-e/154-free.htm>.

13 Ehm & Walter, supra note 6 at 1–2.