Legitimacy

Democratic Experimentation

Posted on by Susanna Cafaro

A possible paradigm for democracy in international organisation is what I call democratic experimentation.

The aim of it is reinforcing the typical elements of the democratic model – legitimacy, accountability, inclusiveness – inside IOs in the most effective ways, consistently with the specific institutional frame and goals of each organization.

In order to do so, the embryonic forms of legitimacy, accountability and inclusion – already existing in a number of IOs – may be progressively strengthened and may evolve into more effective tools and channels. They may be declined in original ways to be improved gradually.

Why “democratic experimentalism”? Because the need to invent new formulas to adjust to the different fields of action and to the different global public goods involved requires that we proceed empirically by trial and error.

A model in this approach is the European Union, defined as “a new legal order” by the European Court of Justice in the famous Van Gend en Loos decision (1963, Case 26/62). It is a model only in terms of process, i.e. in the ability to proceed by trial and error towards more mature forms of democracy, but not in terms of outcome, which is the product of specific historical, cultural and geographical circumstances.

In other words, each international organization could experience a “legal order formula” of its own for  legitimacy, accountability and inclusion, which would be the result of its own specific features and aims. In order to allow such evolution, it is necessary that statutes and founding treaties  establishing the IOs foresee a clear and accessible revision procedure and that they are not considered as carved in stone.

Cultural and structural differences among the organisations prevent from finding universal solutions. What is necessary is rather to find a method and agree on the values and objective to be pursued. As was the case with the process of European integration, other international organizations could evolve into sui generis  legal orders, never seen before.

The twofold advantage of this approach would be: (i) allowing us to read in a teleological frame a series of small evolutions taking place in the law of international organizations (the multiplication  of complaints mechanisms, monitoring bodies, dialogues with civil society); (ii) giving us a key to interpret and measure their progress.

There isn’t yet a ranking of international organisations according to their democratic standards (as there is for States). Nonetheless, it would be possible to build a set of criteria and data to make it possible.

I’m sure that this would be a valuable exercise… and I’d love to contribute.

 

A Case-Study: The Greek Crisis.

Posted on by Susanna Cafaro

Much has been written about the Greek crisis.

Below, some thoughts on this story seen through the glasses of democratic standards and  -specifically-  through the two lenses of the legitimacy and accountability (3D democracy vision)

The financial crisis, in Greece more than elsewhere, has highlighted the erosion of state sovereignty in key areas of typical citizen-state relationships such as the welfare system and the labor market, in which the need for choices perceived as legitimate – but also accountable – is crucial. Some fundamental rights have been touched, some less fundamental ones have been significantly reduced.

Decisions had been taken by top political bodies (Eurogroup, European Council)  and technocratic institutions (European Commissions, ECB, IMF). Let’s put aside for a moment the good intentions as  restoring sound public finances: the simple truth is that parliaments have been ignored. The Greek Parliament – of course- but also the European Parliament.

The issue regards also the method and not just the matter. The solution to the issue itself -austerity or not austerity- is strongly influenced by the method used as some institutions are more easily driven to deliver rigor than growth. Moreover, they lack the necessary legitimacy and accountability to deal with individuals’ rights.

Conditions were attached to the Greek loan facility – a package of bilateral loans by Euro area member States complemented by an IMF loan. Two intergovernmental agreements were signed and entrusted the Commission to manage the package under strict conditionality. A loan facility agreement was then signed by the Commission on behalf of the Euro area member States and by Greece. Next, the economic conditions were agreed on in a series of Memoranda.

Their respect of the rule of law as well as their compliance to the EU Treaty and the EU Charter of Fundamental Rights couldn’t be assessed by the European Court of justice because of the widespread use of atypical legal acts as well as of their intergovernmental nature.

Why? Why the Eurogroup and the German Government had such a strong voice and the Court of Justice had not? Why the Parliaments were not in the debate? Why, even now, with a clear Greek vote legitimizing a different majority in the Parliament and a different vision we still see the old movie going on again and again?

Just follow the money…

Money is not from the EU, money comes from some European governments and from the International Monetary Fund . With some help from the ECB.

The EU budget is too tiny to cope with the crises: less than 1% of EU GDP. Moreover, the 28 EU countries were not all willing to contribute, so the Eurozone States had to manage the crisis on their own. They did it through intergovernmental agreements (as creating the ESM) and according bilateral loans. The IMF – traditionally leaded by an European-  was very sensitive to the problem (even too much, according to the BRICS).

And here comes the Troika…..

The Troika is nothing more than a committee of creditors, entrusted with the management of the loans. Of course it hasn’t any accountability. Its doubtful legitimacy and lack in transparency have been clearly pointed out by the European Parliament.

If we want to assess its accountability, we have to split it into its three components:

The European Commission is an accountable institution, it has to report to the EP, answer to MEPs’ written questions and could even be dismissed by the Parliament with a majority vote. The ECB too is subject to a monetary dialogue with the EP, even if less incisive than the dialogue the Commission has with the EP. Unfortunately, having them acting together confuses responsibilities and makes harder to assess the role of each institution for the decisions taken.

And then we have the IMF.

There is a story I want to tell you about the IMF in the Greek crisis:

In a IMF Country Report about Greece (June 2013) we can read that due to the process of fiscal consolidation  the country paid a too high a price in terms of social and economic losses: “Market confidence was not restored, the banking system lost 30 percent of its deposits, and the economy encountered a much deeper- than-expected recession with exceptionally high unemployment. Public debt remained too high and eventually had to be restructured, with collateral damage for bank balance sheets that were also weakened by the recession”.  The reports makes clear there were successes as well as “[N]otable failures” in the program.

This is somehow a progress in the culture of the institution: analyzing critically the consequences of their choices. For sure the establishment of an Independent Evaluation Office in 2001 contributed to such improvement. Nonetheless, who is politically responsible if a choice is reported wrong? are there any consequences? The answers are: 1) Nobody, 2) No.
A gap in accountability is more than evident.

There is much to say about the tangle of many potential conflicts of interests inside the Executive Board of the Fund and in the IMF itself that we cannot unravel all of them here (but we’ve done it elsewhere!).

What makes the Greek crisis an interesting case study -unfortunately for the Greek people- is that it makes clear that democracy matters. Beyond matters of principle.

What is also really sad (at least for me) is that Europe is losing its credibility over the Greek crisis.

The Basics of Democracy: 1. Legitimacy

Posted on by Susanna Cafaro

We associate legitimacy with free elections.

National legal orders are perceived as legitimate if they are the result of a democratic constituent process and if parliaments (and governments) are periodically renewed through free elections.

In international organizations, it isn’t so simple.

International law knows just one way to recognize as legitimate an IO: the respect of the rule of law.

It is that simple:

1. An organization is legitimate if it has been established by a valid and ratified international treaty and respects international law.

2. It works legitimately if it respects its establishing treaty and the rules and procedures adopted according to it.

This is not surprising, as most of the International organizations were created after WWII when the world was much less interconnected and the state was considered the only legal framework for democracy.

Luckily, something is (very slowly) changing.

Problems:

I. What if rules and procedures just cover a mere balance of powers, ignoring the rights of individuals or even of the weaker states?

II. How can legitimacy work in a society of states, which is not a society of equals? How a governance system may fairly represent all them?

III: Is it possible to imagine a legitimacy stemming not from states but from individuals and, if so, how?

Of course, we could imagine more and more problems to solve, but these are enough to start with… so, let’s try to offer some contribution to the solution.

I.

Beside this legitimacy descending from the respect of the rule of law there is (or should be!) another, more substantial point: an organization is perceived as legitimate if it pursues the objectives assigned to it and reflects the common values shared by its members. And perception is important when the effectiveness of the decisions adopted rests on national systems of enforcement.

II.

An organization is considered legitimate if its decisional bodies are perceived as representative of its members. As states are all but equals,  it is accepted in most international organizations the principle that Member States are represented differently as they reflect different realities (in size, wealth, power)

The decision-making bodies nonetheless enjoy a greater or lesser degree of representation depending on the way they reflect directly or indirectly the membership. When their representation is mediated by weighted voting, it is quite possible that some states do not feel adequately reflected in the number of votes they express.

Are the current parameters the correct ones to reflect their differences? Could we imagine different criteria to make some countries more prominent than others (and not just the winners or WWII or those having bigger GDP?). No matter there are better ways to reflect their contributions to the world, as the HDI index or even more creative, as the Good Country one.

III.

Of course, it would be all different if representativeness was referred to individuals, instead of states.

In this case, it would be necessary to pay specific attention to the main form of legitimacy: free elections and – as a consequence – an elected parliament. This is what already happens in the EU and this is what many scholars and activist think should happen in the United Nations. Today, 24 parliamentary assemblies are institutionally part of international organization, the oldest one being the Parliamentary Assembly of the Council of Europe, established in 1946

The equal representation of the states and the equal representation of their citizens, therefore, are potentially in conflict: proportional representation applied to whole humanity would make a couple of countries rule the world (if they just voted all the same, something whitch I doubt, but still…). So, some kind of degressive proportionality has to be imagined, weighting more the citizens of small countries and less those of the bigger ones. You may think all this is nothing but a speculative exercise, but I assure you that this may be something very realistic if only it is given a chance (and for sure it is worth the effort of distinguished colleagues).

Without going so far, some international organizations are equipped with parliaments which are not directly elected, but represent nonetheless their citizens through national parliaments’ members. It is a first step. Even in the EU the story started so: the Assembly of the European Economic Community asked from the very beginning – and obtained step by step – to become a real parliament.

Interesting examples of such parliamentary bodies are the Parliamentary Assembly of the Council of Europe,  the Pan-African Parliament of the African Union, the OSCE Parliamentary Assembly, while the Parlamento del Mercosur is rapidly evolving into a directly elected chamber. Unfortunately, these important institutional actors mostly play a consultative role.

But parliaments are not the only possible tools for democratic legitimacy.

Alternative solutions do exist, grounded on creativity and political will.

Have a look at what happens in the Global Fund to Fight AIDS, Tubercolosis and Malaria, in the Kimberley Process, in the Internet Governance Forum, in the Global environmental facility. All of them involve in original ways states, individuals and other stakeholders. And they are all different!

There is much room for legal creativity in the globalized world and it is time to take advantage of it.