democracy and human rights the role of the un pdf

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Democracy and

Human Rights:The Role of the UN

DiscussionPaperSeptember 2013


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Successful democratic governance mustinevitably focus on promotion and protectionof human rights and fundamental freedoms.

For without this protection there can be no

democracy in any meaningful sense.

Copyright United Nations, 2013. Views expressed

in this publication do not necessarily reflect thoseof the United Nations, or of International IDEA, itsBoard or its Council members

All photographs International IDEA 2013

ISBN: 978-91-86565-89-3


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Key Recommendations 6Executive Summary 7

Conclusions 7Recommendations 9

1. Introduction 12Background and Objectives of the Round Table 12Structure of the Round Table 13

2. Human Rights and Democracy Building: Setting the Constitutional andGovernance Framework 14

3. Role and Impact of the UN and Regional Organizations inPromoting a Rights-Based Approach to Governance 18

4. UN Coherence in Building Sustainable Democratic GovernanceBased on the Rule of Law 21

5. Conclusions and Recommendations 24Conclusions 24

The Relationship between Democracy and Human Rights 24The UN Role in Promoting and Supporting a Rights-based Approach toDemocracy 25

Recommendations 26 Building an Inclusive Framework for Democratic Governance 27 Perceptions of the UN and the UNs Comparative Advantage 27 UN Coherence in Building Sustainable Democratic Governance 28

Annexes 29Annex 1: Concept Note and Annotated Agenda for the InternationalRoundtable on Democracy and Human Rights,11-12 July 2011 29

Annex 2: Introductory Remarks of Mr Ivan imonovi,Assistant Secretary-General for Human Rights 39

Annex 3: Statement of Ms Elizabeth Spehar, Director, Europe Division,United Nations Department of Political Affairs 42

Annex 4: Statement of Dr Massimo Tommasoli, Permanent Observer forInternational IDEA to the United Nations 44

References and Further Reading 49

Abbreviations 51

Contents

INTERNATIONAL IDEA AT A GLANCE

Democracy remains a universal human aspirationand a powerful force of political mobilization forchange, as witnessed by citizen-led movementswhich are demanding democratic reform.

International IDEAs Strategy 20122017

What is International IDEA?

The International Institute for Democracy andElectoral Assistance (International IDEA) is anintergovernmental organization with a mission tosupport sustainable democracy worldwide.

The objectives of the Institute are to support

stronger democratic institutions and processes,and more sustainable, effective and legitimatedemocracy.

International IDEA is the only globalintergovernmental organization with the solemandate of supporting democracy; its vision isto become the primary global actor in sharingcomparative knowledge and experience in supportof democracy.

What does International IDEA do?

International IDEA produces comparativeknowledge in its key areas of expertise: electoralprocesses, constitution building, politicalparticipation and representation, and democracyand development, as well as on democracy asit relates to gender, diversity, and conflict andsecurity.

IDEA brings this knowledge to national and localactors who are working for democratic reform,and facilitates dialogue in support of democraticchange.

In its work, IDEA aims for:

Increased capacity, legitimacy andcredibility of democracy

More inclusive participation andaccountable representation

More effective and legitimate democracycooperation

How does International IDEA work?

Because democracy grows from within societies,it is constantly evolving. There is no single anduniversally applicable model of democracy; the

critical choices are best made, and the qualityof democracy best gauged, by the citizensthemselves. IDEAs work reflects this; the Instituteswork is organized at global, regional and countrylevel, focusing on the citizen as the driver ofchange.

IDEAs work is non-prescriptive and IDEA takes animpartial and collaborative approach to democracycooperation; emphasizing diversity in democracy,equal political participation, representation ofwomen and men in politics and decision making,and helping to enhance the political will requiredfor change.

The Institute brings together a wide range ofpolitical entities and opinion leaders. By conveningseminars, conferences and capacity buildingworkshops, IDEA facilitates the exchange ofknowledge at global, regional and national levels.

Where does International IDEA work?

International IDEA works worldwide. Based inStockholm, Sweden, the Institute has offices in theAfrica, Asia and the Pacific, Latin America and theCaribbean, and West Asia and North Africa regions.

International IDEA is a Permanent Observer to theUnited Nations.

Member States

International IDEAs Member States are alldemocracies and provide both political andfinancial support to the work of the Institute.The Member States include Australia, Barbados,Belgium, Botswana, Canada, Cape Verde, Chile,Costa Rica, Denmark, the Dominican Republic,Finland, Germany, Ghana, India, Mauritius, Mexico,Mongolia, Namibia, the Netherlands, Norway,

Peru, the Philippines, Portugal, South Africa, Spain,Sweden, Switzerland and Uruguay. Japan hasobserver status.

Governance

International IDEA is governed by a Councilcomposed of its Member States and assisted bya Board of Advisers. Mr Vidar Helgesen, Norwaysformer Deputy Minister of Foreign Affairs, is theSecretary-General.


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United Nations International IDEA


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Democracy and Human Rights:

The Role of the UN

Editor: Massimo TommasoliRapporteurs: Kendra Collins and Zdzisaw Kdzia

Report from the International Round Table on Democracy and Human Rights: The Role of the United Nations co-organizedby International IDEA, UN Department of Political Affairs and the UN Office of the High Commissioner for Human Rights


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United Nations International IDEAInternational IDEA

Key Recommendations

1 The relationship between democracy and human rights is intricate, symbiotic and mutuallyconstitutive. A rights based approach to democracy grounded in the rule of law is consideredincreasingly the most consistent safeguard against human rights abuses. The UN should both heed thecalls for democratic reform as they arise and be involved in sustainable human rights based democracybuilding processes.

2 The success of a democracy building endeavour will be directly affected by the inclusive andconsultative nature of the constitution making process, and human rights standards providea detailed foundation for these processes. The UN should strive to ensure inclusion and activeparticipation in the constitution making process and should identify appropriate and sufficientresources to support these processes in the long term.

3The UN must identify and mobilize existing assets within its system and work in a unifiedmanner so as to better marshal its unique ability to promote rights based democratic processes,especially in relation to disadvantaged and under-represented groups, including women and youth.

4The UN should continue to lead the discussion on the universality of human rights and how therespect, protection, promotion and fulfillment of human rights are part of the essential frameworkfor effective democratic governance. The UN should consider a peer review process for democracyin order to assess how Member States are fulfilling obligations made to their people under theinternational human rights treaties they have ratified.


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Democracy and Human

Rights: The Role of the UN

Executive Summary

On 11-12 July 2011,the United NationsDepartment of PoliticalAffairs (UN DPA),the UN Office of theHigh Commissioner

for Human Rights (OHCHR), and theInternational Institute for Democracy andElectoral Assistance (International IDEA)organized a two day round table in New

York on democracy and human rights. TheInternational Round Table on Democracyand Human Rights was part of a series ofpolicy-oriented events organized by the UNand International IDEA on the relationshipbetween democracy building and the pillars ofUN work. The Round Table brought togetherover fifty policy makers, practitioners andacademics at the UN Headquarters to analyzethe inter-linkages between democracy andhuman rights and their relevance to currentUN actions.

The agenda for the Round Table wasdeveloped jointly by UN DPA, OHCHRand International IDEA,1and was structuredaround three main sessions:

1. The role of human rights in democracybuilding, with an emphasis on supportfor constitution making.

2. An examination of Member Statesperceptions of the UN and other

regional organizations roles inpromoting a rights based approach todemocracy.

3. The coherence of the UNs approachto building sustainable democraticgovernance based on the rule of law.

This summary report of the two dayRound Table presents the key conclusionsand recommendations to emerge from thediscussion.

Conclusions

The Relationship Between

Democracy and Human Rights

Recognizing an interdependent link:Participants agreed that the linkbetween democracy and human rights isinterdependent, intricate, mutually supportiveand symbiotic with some participantsproposing that the most appropriate term

to use is mutually constitutive. Democracycannot be defined without human rights.Human rights can be protected effectivelyonly in a democratic state. A functionaldemocracy that accommodates diversity,promotes equality and protects individualfreedoms is increasingly becoming the bestbet against the concentration of power in thehands of a few and the abuse of human rightsthat inevitably results from it. In turn, thegreatest protection of human rights emanates

from a sustainable democratic frameworkgrounded in the rule of law.

Responding to the calls for democraticgovernance and rights: The exciting callfor change in Africa and the Middle Eastwas viewed as a combination of a callfor sustainable and inclusive democraticgovernance with a call for rights. Democraticreforms and the restoration of humanrights protections are seen as parts of thesame vision of change. Both democracy

and human rights are advancing globally:there are more democratic and free electionstaking place throughout the world, andhuman rights are observed more than everbefore. There has also been advancement inmechanisms of protection and promotionof human rights. The Arab Spring has re-energized the democracy support community,motivating people to act and confirming tothe international community that it is on theright track in its efforts to prioritize this issue.

Deepening the understanding of a rights

1 International IDEA commissioned a background paper written by Professor Dzidek Kedzia from the University of Poznatitled

Democracy and Human Rights: Challenges and Opportunities for the UN.


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based approach to democracy: The participantsstruggled with the concept of a rightsbased approach to democracy. While therights based approach to developmentdirectly changed the quality of developmentassistance, a rights based approach todemocracy, although equally valid, has provedmore difficult. Democracy is a complicatedand time consuming system. Nevertheless,its description as the least worst form of

government is just another version of thephrase best but challenging and uneasy.While building democracy, it is essential toremember that functionality, effectivenessand efficiency must be among its constitutivefeatures.

Supporting sustainable rights based democracybuilding: The issue of sustainability was alsodebated, with participants noting that humanrights based democracy can take a long timeto build up. Nor is it a linear, cumulative

process and it can collapse easily. A creepingde-democratization can take the form ofsmall adjustments though affecting importantelements of political structures. A sustainablerights based democracy requires, among otherthings, that citizens are knowledgeable abouttheir rights, that public political participationis encouraged through elections and activeinvolvement in local government, and thatinstitutional accountability and transparencyare ensured.

The UN Role in Promoting and

Supporting a Rights Based

Approach to Democracy

Playing effectively an advocacy role: Participantsidentified a tension in the UN systembetween whether the Secretariat is boundto lowest common denominator consensusof UN Member States, or whether it canact independently as an autonomousstakeholder in the promotion of humanrights and democracy. In arguing for the

latter, Article 99 of the UN Charter states

that The Secretary-General may bring tothe attention of the Security Council anymatter which in his opinion may threatenthe maintenance of international peace andsecurity (United Nations, 1945). This meansthat the Secretary-General does have a distinctresponsibility, determining also the positionof the entire UN Secretariat.

If the UN is to take action on any issue,

it must be armed with universal values anduniversal rules. Part of the UNs role is toadd to normative and policy development inthe democracy and human rights field. TheGuidance Note on Democracy is a majorstep in this regard. This was produced by theSecretary-General in his independent capacityand, as such, is a high level and influentialdocument. It was recognized that the UN hasthe responsibility to spearhead a discussionon the universality of human rights anddemocracy, based on global experience.

Determining the extent of UNs advocacy rolethroughout the world: The issue of how deeplythe UN should be involved in advocacy forhuman rights based democracy was discussedin each session of the Round Table. Thebias was generally in favour of a thoughtfulinvolvement, fully taking into accountthe circumstances, and in particular therequirement for national ownership. Wherea community is able to hold a dialogue byitself, the UN should focus on facilitating that

dialogue and enriching it with internationalexperience. The UN can also do much tostrengthen the inclusive nature of communitydialogue by providing additional forums forparticipation, particularly reaching out to themore marginalized in the community.

Exploring the UNs potential relationshipwith national, regional and international actors:Attention was raised about the often exclusiverelationship the UN has with the executiveof the countries where it works. This should

not be accepted as the norm, and the UN


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should attempt to form a broader range ofrelationships, including with parliaments andcivil society and particularly with womenand other disadvantaged groups. In thesame vein, the UNs role would be furtherstrengthened by deepening its partnershipswith regional and international actors thathave already developed regional standards andnormative frameworks for democracy.

Bridging the gap between statements andaction: Moving from policy statements topractical implementation is complicated. TheUN, like other international and regionalactors, prefers to focus on events ratherthan process to prevent it from steppingbeyond being a service provider and intothe realm of sovereignty. It is a particularlychallenging situation for external actors to beinvolved deeply in matters such as systems ofgovernance or constitution making that havea decisive impact on the future of the country.

Any international support should be based onuniversal values and norms and should alsoprovide comparative knowledge about whathas and has not worked in other places. UNstructural coherence is needed not only in thearea of human rights and democracy: it is amuch broader problem for the UN to addresson a continuing basis.

Engaging on breaks in the democraticconstitutional order: The Round Tabledeliberated about the role of the UN and

other organizations when ruptures in theconstitutional order or unconstitutionaltransitions of government power occur afterdemocratic elections. While most regionalorganizations have taken a zero tolerancepolicy approach in this respect, the UN isoften the only organization left to engage andprovide assistance in such situations, riskingcriticism either for interference in internalaffairs or for tolerating unconstitutionalpreservation of political power. This leads

to questions about whether the UN should

insist on crafting a consistent and systematicapproach to all cases based on democraticnorms and principles or take a more nuancedcase-by-case approach. While the latterargument seemed to hold greater weight, itwas recognized that the lack of consistencycan potentially harm the UNs credibility.

Recommendations

The following key recommendations emergedfrom the Round Table discussions:

1. The relationship between democracyand human rights is intricate, symbioticand mutually constitutive. A rightsbased approach to democracy groundedin the rule of law is consideredincreasingly the most consistentsafeguard against human rights abuses.The UN should both heed the calls for

democratic reform as they arise and beinvolved in sustainable human rightsbased democracy building processes.

2. The success of a democracy buildingendeavour will be directly affected bythe inclusive and consultative natureof the constitution making process,and human rights standards provide adetailed foundation for these processes.The UN should strive to ensureinclusion and active participation in the

constitution making process and shouldidentify appropriate and sufficientresources to support these processes inthe long term.

3. The UN must identify and mobilizeexisting assets within its system andwork in a unified manner so as to bettermarshal its unique ability to promoterights based democratic processes,especially in relation to disadvantagedand under-represented groups, including

women and youth.


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4. The UN should continue to lead thediscussion on the universality of humanrights and how the respect, protection,promotion and fulfillment of humanrights are part of the essential frameworkfor effective democratic governance.The UN should consider a peer reviewprocess for democracy in order toassess how Member States are fulfillingobligations made to their people under

the international human rights treatiesthey have ratified.

More specific conclusions andrecommendations are summarized below.These are organized in three groups:

Building an Inclusive Framework forDemocratic Governance based on HumanRights;

Perceptions of the UN and the UNsComparative Advantage; and

UN Coherence in Building SustainableDemocratic Governance based on HumanRights.

Building an Inclusive Framework

for Democratic Governance based

on Human Rights

The success of democracy building willbe directly affected by the inclusive andconsultative nature of the constitution

making process, as much as by the eventualcontents of the constitution. Human rightsstandards and jurisprudence provide a detailedfoundation for processes that are inclusiveand consultative, as well as for the substanceof what is contained in a constitution. Interms of the latter, substantive protectionincludes both the nature of rights to berespected, protected, promoted and fulfilledas well as the institutions needed to ensurethat violations of human rights have a remedyin practice. A governance framework that is

not based on human rights and fundamental

freedoms will be devoid of the essentialelements for a functioning democracy.

The UN therefore needs to identifyappropriate and sufficient resources tosupport long term constitution makingprocesses to ensure that human rights areprotected and that due process based ona human rights framework establishes fairprocedures so that grievances and violations

of the law can be addressed and so thatsocial conflicts be peacefully resolved.

The UN should also strive to ensureinclusion and active participation in theconstitution making process by as broad arepresentation of the society as possible.

All participants in the constitution makingprocess require enough time to considerproperly the range of political, economicand cultural factors that must be addressedin the new constitution. The internationalcommunity should refrain from pushingto reduce the time taken for constitutionmaking. To do so potentially diminishesthe effectiveness of the process andreduces the substantive quality of the enddocument.

The role of the UN in a constitutionmaking exercise should be focused onenhancing dialogue and giving voice toall relevant actors in the political process,including in particular more marginalizedand disadvantaged groups in a society.

The Organization should providecomparative knowledge and experiencesfrom inclusive and participatoryconstitution building processes, especiallythose drawn from the Global South.

The UN should build on the expertiserelevant to different aspects of constitutionmaking from within its system, includingOHCHR which has the lead on human

rights, as well as from intergovernmental


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organizations engaged in inclusive politicaldialogue, regional organizations and non-governmental organizations that work inthis field.

The UN should also focus on advocatingfor, as well as financially supporting,inclusive and participatory processes.

Perceptions of the UN and the UNs

Comparative Advantage The UN needs to identify more creative

ways of broadening the groups it interactswith in order to counter concernsabout bias towards the executive andto ensure effective engagement in thedemocratization process. The Secretary-Generals Guidance Note on ConstitutionMaking (UN Secretary-General, 2009a)provides guidance for identifying therelevant groups in society that should beconsulted in a constitution making process,including women, youth and religiousminorities.

The UN should make more effort to useits comparative advantages and assets including its normative, convening,disseminating and protective powers inorder to enhance its role promoting rightsbased democracy. The establishment of theUN Coordination and Resource Group hasalready played a useful coordinating role inthis regard; and the various UN agenciesshould be encouraged to collaborate witheach other more actively on democracyassistance.

UN Coherence in Building

Sustainable Democratic

Governance based on Human

Rights

The UN should continue to lead thediscussion on the universality of humanrights and how respect, protection,

promotion and fulfillment of human rights

provides part of the essential framework foreffective democratic governance. No otherorganization has the legitimacy to assumethis role. The UN Secretariat and theSecretary-General can play an importantrole in furthering policy, without having toresort to the lowest common denominatorapproach.

Although there is no one formula for the

establishment, functioning and evolutionof democratic governance, the UN shouldnot hesitate to speak out strongly whendemocratic governance is being eroded andhuman rights are violated.

The UN should act, through all relevantmechanisms and processes, to encourageStates that are not yet democratic (orare nominally democratic but do notin practice protect human rights) tocarry out democratic reforms that will

create open, pluralistic societies based onfreedom of expression, association andassembly, democratic electoral law and anindependent judiciary, as well as societiesfirmly rooted in democratic governanceas reflected by the vote of the people inregularly held, open and fair elections.

The UN should consider a peer reviewprocess for democracy, along the linesof the Universal Periodic Review (UPR)mechanism established by the Human

Rights Council. As part of the UPR, aswell as reporting to relevant treaty bodies,States should be encouraged to declarewhat actions they have taken to establishdemocratic governance or to strengthentheir democracies and to indicate how theyare fulfilling the obligations made to theirpeople in the international human rightstreaties they have ratified, as well as in theirconstitutions and laws.


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Introduction

On 11-12 July 2011, the United NationsDepartment of Political Affairs(UN DPA), the UN Office of the HighCommissioner for Human Rights (OHCHR),and the International Institute for Democracyand Electoral Assistance (International IDEA)organized a two day round table in NewYork, focusing on democracy and humanrights. The round table aimed to provide anopportunity to analyze the linkages between

democracy and human rights and theirrelevance to current UN actions. The conceptnote for the meeting is presented in Annex 1.

The Round Table brought togetherover 50 policy makers, practitioners andacademics. The event was the last in a seriesof four meetings examining the questionof UN support for democracy. The first,in September 2008, looked at Democracyfor Development and Development forDemocracy2. The second, in March 2010,

examined Democracy, Peace and Security3.A third meeting on Gender Equality andDemocracy took place in May 20114. Allfour of these meetings were a collectiveresponse to the Secretary-Generals request inNovember 2007 for the development of anorganization wide strategy to further definethe UN approach to supporting democracy,underlying the pillars of the UNs work: peaceand security, development and human rights.The meetings also aimed to reinvigoratethe way the UN understands, protects andpromotes democratic principles and values,as well as coordinates relevant activities ondemocracy and human rights across thesystem to ensure optimum impact.

Background and Objectivesof the Round Table

Significant norms and standards related todemocracy and human rights are embodied

in the 1948 Universal Declaration of Human

Rights (UDHR), which states in article21(3): [t]he will of the people shall be the basisof the authority of government; this will shallbe expressed in periodic and genuine electionswhich shall be by universal and equal suffrageand shall be held by secret vote or by equivalentfree voting procedures.These links are furtherdeveloped in the International Covenanton Civil and Political Rights (ICCPR),which enshrines a range of political rights

and civil liberties underpinning functioningdemocracies.

In 1993, the World Conference on HumanRights adopted the Vienna Declarationwhich proclaimed the interdependence ofdemocracy, economic development andhuman rights. At the 2000 UN Summiton the Millennium Development Goals(MDGs) and the 2005 UN World Summit,the international community reaffirmed itscommitment to human rights, the rule of law

and democracy as universal and indivisiblecore values and principles of the UnitedNations.

In 2002, the UN Commission on HumanRights endeavoured to promote a commonunderstanding of democracy, adopting alandmark resolution which defined essentialelements for democracies, includingrespect for human rights and fundamentalfreedoms; freedom of association; freedomof expression and opinion; access to power

and its exercise in accordance with the ruleof law; the holding of periodic free andfair elections by universal suffrage and bysecret ballot as the expression of the will ofthe people; a pluralistic system of politicalparties and organizations; the separation ofpowers; the independence of the judiciary;transparency and accountability in publicadministration; and a free, independent andpluralistic media. These essential elementsof democracy were re-affirmed in 2012 by

the Human Rights Council in its resolution

2 Organized by DPA, UNDP and International IDEA.

3 Organized by DPA, DPKO, UNDP and International IDEA (see Tommasoli, 2010).

4 Organized by DPA, UN Women, UNDP and International IDEA.


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19/36 on Human rights, democracy andthe rule of law (United Nations, 2012). In2008 a guidance note by the UN Secretary-General (S-G) addressed the UN approachto rule of law assistance (UN S-G 2008).More recently, the UN S-Gs guidance noteson Constitution making (UN S-G 2009a)and Democracy (UN S-G 2009b) statevery clearly the UNs key role in supportinginclusive and participatory constitution

making processes, while also indicating thatthere cannot be democracy without humanrights and that human rights cannot beproperly implemented in a non-democraticenvironment either.

Over the last 20 years, 3 differentdevelopments produced a new understandingof the complex linkages between thedemocracy and human rights agendas at theUN:

1. The so-called third wave ofdemocratization that in the early 1990sled to a growing engagement of the UNin electoral processes and democracybuilding.

2. The UNs growing engagement inpost-conflict recovery and peacebuildinginvolved grappling with challenginginteractions between the economic,social and political realities in a numberof countries.

3. The adoption of rights based approachesto development brought to the fore thepolitical dimensions of development(related to issues of inclusion, legitimacyand accountability) especially from agender equality perspective.

The recent uprisings in many Arabcountries not only constitute a major changein the political landscape of the regionand a critical development in the field of

democratization but also call for a careful

assessment of the role of the UN in addressingthe crucial interface between democracybuilding and human rights.

There is wide agreement that democracyand human rights are intimately linkedand that both are mutually supportive andmutually dependent. Despite this level ofclarity at the normative and conceptual level,translating policy statements or academic

discussions into practice on the ground hasproven to be complicated. The Round Tableasked the participants to look critically at therelationship between democracy and humanrights and the role of the UN and regionalorganizations in their support for democracyand human rights. These general topics wereexpressed in more specific questions, such as:How to address situations when a democraticprocess (majority rule) conflicts with humanrights? What is the level of understanding ofthe complex and challenging linkage between

democracy and human rights manifestedwithin the respective communities of practice,and in the dialogue among them? Is UNaction effective? How is it perceived? Howcan the work of the UN system be madesustainable and inclusive, servicing bothhuman rights and democracy at the sametime? How can policy decisions be bettertranslated into field practice?

The Round Table also focused on UNactions to ensure system wide coherence and

efficiency, particularly in the light of recentevents in the Middle East and North Africa(MENA) region. The aim was to providesuggestions to senior officials on how tobetter support democracy in order to promotehuman rights and how to better supporthuman rights in order to promote democracy.

Structure of the Round Table

The agenda for the Round Table on

Democracy and Human Rights was developed


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jointly by DPA, OHCHR and InternationalIDEA. Prior to the meeting, InternationalIDEA commissioned a background paperwritten by Professor Dzidek Kedzia from theUniversity of Pozna , Democracy and HumanRights: Challenges and Opportunities for theUN. The agenda was structured around threemain sessions. The first focused on the roleof human rights in democracy building, witha focus on support for constitution making.

The second session looked at the perceptionof partner countries of the UN and otherregional organizations roles in promotinga rights based approach to democracy. Andthe third session looked at how coherentthe overall UN approach is in buildingsustainable democratic governance based onthe rule of law.

This summary report of the InternationalRound Table on Democracy and HumanRights presents the key conclusions and

recommendations that emerged from theparticipants discussions.

Human Rights

and DemocracyBuilding: Settingthe Constitutional

and GovernanceFramework

The first panel considered strategic, policy, operationaland research based issues related to how the UN and regional

organizations handle unconstitutional changes in government, andthe role of civil society and national, regional and internationalgovernment bodies in building an inclusive framework fordemocratic governance in the aftermath of regime change. Thediscussion also touched upon the need for, and scope of, transitionalgovernance arrangements, and how to reflect human rights including minority rights in constitutional reform efforts.

Special attention was paid to the constitution making process,with participants agreeing that the process used to develop anddraft a constitution has a vital influence on both the constitutionand the ongoing life of the society concerned5. The participatory

and transparent nature of the constitution making process helpsto ensure that the final constitution reflects essential pillars ofdemocracy, such as guaranteeing that the legitimacy of the stateis created and sustained by the will of its people and guaranteeingan individuals and groups basic rights in a society. Ensuring sucha process occurs also helps to guarantee that existing or potentialgrievances and conflicts can be resolved peacefully and in a timelymanner.

Given the above, participants noted that the role of theconstitution drafting body needs to be defined very carefully,in order to protect the process against dominance by powerful

parties or groups and to avert the finalization of a document

5 The interest in constitutions and the processes of making and remaking them

has grown over the last few years, as a consequence of the increasing number of

constitution making processes that have been taking place since the end of the

Cold War. International IDEA and Interpeace recently produced practical guides and

handbooks on this theme (Bckenfrde et al., 2011; Brandt et al., 2011).


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that has not been subjected to appropriateconsultation with the broader public. Theuse of the qualified majority rule for passinga constitution is one important means ofpreventing vested interests from dominating aprocess. In this regard, the idea of building inan automatic review of the constitution aftera certain period was floated recognizing thatit deserves consideration.

The need for broad participation in theconstitution making process was stronglyendorsed, with references made to Article 25of the ICCPR which provides the legal basisfor participation in the conduct of publicaffairs as a human rights standard.6Suchinvolvement of the society also provides apractical and visible lesson that democraticprocesses can be designed to allow all groupsto air their grievances and that conflicts canbe peaceably resolved among them. In thisregard, the way in which the population

actively participated in the constitutionmaking process in South Africa7 resulting inover two million submissions from the public was considered closely correlated to theultimate legitimacy of the process. Referencewas also made to the constitution makingprocess in Rwanda8where a twelve memberconstitutional commission lived for a periodof six months among the people as a means ofhearing their concerns first hand. Participantsnoted that effective popular participationoften requires a programme of civiceducation, enabling citizens to understandwhat a constitution actually is, of what aconstitution making process consists and howthey can benefit from the constitution.

Countering social exclusion is an essentialbuilding block in the construction of ademocratic society with full respect forhuman rights. In practice, this means thatthe constitution making process must ensurethe active engagement of all minorities and

previously excluded groups, along with

representatives of the elite and majorities.The Secretary-Generals Guidance Note onassistance to constitution making processesindicates that the UN should encourageoutreach to all groups in society, includinghuman rights defenders, associations oflegal professionals, media and other civilsociety organizations, including thoserepresenting women, children, minorities,indigenous peoples, refugees, stateless and

displaced persons, and labour and businessorganizations. While it was acknowledgedthat a leadership is needed for the constitutionmaking process, the challenge is to prevent itfrom becoming dominated by this elite groupof people to the exclusion of others. Measuresmay need to be in place to guaranteeinclusiveness.

Participants expressed concern about theimposition of time constraints on constitutionmaking processes, including by international

actors. Sufficient time is needed to considerthe variety of political, economic and culturalfactors that need to be addressed, includinghuman rights and democracy concerns. Theinternational community should, therefore,refrain from pushing to shorten the timeframefor constitution making at the expense ofits procedural and substantive quality. InSouth Africa, for example, three years wereallowed for a fully participatory process,and participants suggested that creativitywas needed to come up with the resourcesto be able to devote the time necessary forconstitution making processes to bear thefruit asked of them. In this regard, the UNSecretary-Generals statement on the pace ofdemocratization was recalled: It is inherentin this concept that democratization doesnot necessarily lead immediately to a fullydemocratic society. That goal may be attainedonly in steps, with an authoritarian societygradually becoming less so. The pace at whichdemocratization can proceed is inevitably

dependent on a variety of political, economic,

6 The Human Rights Committee concluded in an individual communication that Article 25 of the ICCPR applies to constitution

making processes. See Marshall v. Canada, Communication No. 205/1986 (United Nations Human Rights Committee, 1986).

7 The constitution in South Africa was promulgated by President Nelson Mandela on 10 December 1996 and came into effect on

4 February 1997, replacing the Interim Constitution of 1993.

8 The Constitution of Rwanda was adopted by referendum on May 26, 2003, replacing the previous Constitution of 1991.


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social and cultural factors some of which, in agiven society, may not be susceptible to rapidchange (UN Secretary-General, 1995).

The use of interim or transitionalconstitutions or constitutional acts withminimal content were discussed as a meansof providing sufficient time to carefullydefine and develop a final constitution.An appropriate time period can facilitatebuilding conflict resolution mechanismsinto the constitution making process, whichcan ultimately help in preserving the entireprocess should differences or disputes arise.A transitional constitution may also benecessary to provide the legal frameworkfor the ongoing running of the country if

previous political institutions have collapsed;or it may replace a previous constitutionthat, for historical or ideological reasons,was considered unacceptable. In the case ofparticularly bitter divides in a society, theuse of an interim constitution which allowsfor transitional divisions of power may be anappropriate short term response. However,the use of power sharing arrangements as along term solution in post-conflict scenariosraised concern among many of the RoundTable participants, who stressed the need forpublic interest, rather than group interests, to

Box 1: Hungary: The critical importance of the constitution building processHungary is an example of what can happen if the constitution making process lacks anappropriate process and timeframe. It was suggested that there was a failure to provide sufficienttime and process to entrench the principles enshrined in the constitution when revisions weremade in 1989 to Hungarys 1949 constitution. While the process succeeded in enabling apeaceful transition from a single party Communist state to a pluralist political system, there waslittle concerted effort to promote public participation during the process and, as a result, littleentrenchment of the rights and values enshrined within it. In the 2011 elections, the center-rightpolitical party won a supermajority in Parliament, providing the party with enough power to

change the constitution. This power has since been used extensively, amending the constitutionten times in their first year in office and then enacting a wholly new constitution which tookeffect on 1 January 2012. This has led to the concentration of virtually all power in the hands ofthe current governing party for the foreseeable future.

dictate how common problems are addressed.

Some participants questioned whetherthere should be a globalized approach thatincludes underlying human rights andprinciples that would govern constitutionmaking processes. If so, should the nationalconstitution making body be a sovereignentity or should it be limited in what itcan do? Should governments remain inpower if they do not support these rightsand principles? And, does the internationalcommunity have a role in ensuring thatcommon principles are enforced? In responseto these questions there was general supportfor constitution making to be in conformitywith universal human rights standards.

The need to uphold these standards doesnot interfere with sovereignty, but gives acontemporary content and meaning to it.Sovereignty not only involves power but alsoresponsibility. Though ultimately, accordingto universally adopted standards, governmentsbear the primary responsibility for theimplementation of human rights.

Participants also examined the roleof regional organizations, particularly insituations of regime change and threats to

democracy (see Box 2).


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Box 2: Threats to democracy and regional organizations: The cases of the AfricanUnion (AU) and the Organization of American States (OAS)While the UN has yet to adopt any formal position on unconstitutional changes in government,both the AU and OAS have been able to develop clear norms and principles around this issue.While not yet in force, the African Charter on Democracy, Elections and Governance (2007)includes language on unconstitutional changes in government, including military coup dtatsagainst a democratically elected government, replacement by armed dissident groups and/orrebel movements, and refusal by incumbent governments to relinquish power to the winning partyfollowing a free, fair and regular election.

OAS Resolution 1080 is very specific on the issue of interruptions of democratic order withspecific steps mandated for such cases. The Inter-American Democratic Charter further calls onmember states of the OAS to act collectively, as a binding obligation rather than vague moralduty, to combat threats to democracy. It was argued that the importance of these regional normsand instruments and the power of related sanctions should not be underestimated as theycontribute to highlighting threats to democracy and support civil society in holding governmentsaccountable.

Within this connection, questions werealso raised about whether the UN and

regional organizations, in some instances,could be accused of adopting doublestandards in relation to the recent popularrevolutions in the MENA region. Someasked whether the UN had either perpetuatedor supported situations that were blatantlyunconstitutional. The problem is complex,and there are different views on eachspecific situation. The April 2010 events inKyrgyzstan were used as an example: somesaw this as an opportunistic coup againsta weakened president and an oppressiveand corrupt regime, while others saw it as apopular and legitimate uprising supportedby the international community. The AUPeace and Security Committee adopted aninteresting reaction to the events in Egypt,expressing solidarity with the Egyptian peoplewhose desire for democracy is consistentwith the relevant instruments of the AU andthe continents commitment to promotedemocratization, good governance and respectfor human rights. The reaction of the AU

was therefore based on the notion that the

popular revolutions were legitimate and didnot represent an unconstitutional change

of government. The question of where theinternational and regional community shoulddraw the line emerged, with no clear and easyanswer.


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Role and Impact of the UNand Regional Organizations

in Promoting a Rights BasedApproach to Governance

The second panel focused on the perception of the UN and regionalorganizations as they attempt to provide democracy assistance based onhuman rights principles and on the UNs comparative advantage vis--vis otherinternational and regional actors in this area.

Participants suggested that perceptions of the UN and regional organizations are

mixed, depending on whom you ask, with markedly different views between civilsociety, the government and individuals. A number of participants commented onthe fact that some UN agencies are seen as being too closely associated or affiliatedwith illegitimate governments or regimes because of the mandate requiring them towork with the government. This is a particular challenge for Resident Coordinatorswho face the dilemma of having to work with a problematic government while alsohaving to protect and promote international norms and values.

The meeting discussed three underlying principles that should be applied bythe UN and regional organizations in the promotion of a rights based approach todemocracy: legitimacy, credibility and accountability.

On legitimacy, participants noted that involvement in any country needed tobe rooted in international law and supported by intergovernmental decisions. Itwas noted that a significant number of human rights standards are non-derogable,meaning that states have no legal basis, even in a state of emergency, to refuse tohonour these rights. Participants also stressed that any outside assistance neededto be mandated, i.e. no organization should be allowed to come in without beinginvited. And finally, legitimacy also meant that any engagement should includeadvocating strongly for a participatory approach involving civil society. Participantsalso sustained that the UN should pay greater attention to working withparliaments, while also cautioning against seeing the failure of political structures(such as parliaments and political parties) as a reason to stop making efforts tostrengthen these institutions. The youth was also identified as a non-traditionalgroup for the UN to work with a conclusion emphasized by the recent events inthe MENA region.

Credibility means that UN work needs to be firmly based on global values andinternational law. But it also needs to take into account the reality on the ground,including local processes, which differ from country to country. Credibilityalso stems from long term involvement and particularly the commitment ofinternational organizations to share lessons of what has worked and what has notworked elsewhere as a means of avoiding past mistakes. In this context, the UNwas urged to avoid any action where it could be criticized for applying doublestandards.


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Box 3: Kenya: Potential role of the international community in supporting constitutionbuildingKenya was used as an illustration of the practical and supportive role the UN and others canplay in a democracy building process. In 2003, the Constitution of Kenya Review Commissionembarked on a process of constitutional review. The involvement of a large proportion of thepopulation in the development of the resulting constitution was unprecedented, particularly interms of womens participation. It was clear that ordinary Kenyans were concerned about theirbasic rights (such as how to feed their family) while the political class was more concerned aboutpower as it played out in the executive. While many politicians were not even aware of what the

bill of rights was, the UN played a significant role in teaching people about their rights througha programme of civic education. This process culminated in a new constitution, discussed at anational conference. The draft (called the Wako Draft) was voted on in a 2005 referendum but itultimately did not meet the expectations of a majority of Kenyans and was rejected. Again dueto a massive civic education programme, Kenyans were aware that many issues included in thedraft were contentious and had been adulterated from original drafts, thereby not meeting theirdemands. Work began again in 2008 and a new constitution was finally passed in August 2010.

One participant reflected on the difficultyof sustaining long term involvement, pointing

out that the international community oftenonly reacts in times of humanitarian orsecurity emergencies. Once the immediateemergency is over it is difficult to justifyremaining on the ground and to continueto support the country involved. The samedifficulty is also evident when looking atdemocratic processes, given the length oftime needed for democracies to truly establishthemselves which points to the need to seedemocracy support as an ongoing processrather than event driven. Participants also

discussed the tensions that arise in post-conflict situations between human rightsand democratically taken decisions thatmay limit the scope of protected rights inorder to ensure security. In accordancewith international human rights standardsand many national constitutions, threats tosecurity may justify some limitations imposedon individual freedoms and rights. However,participants stressed that the internationalcommunity had a responsibility to argue that

decisions taken by democratically established

bodies should always comply with humanrights principles.

Finally, concerning accountability, itwas proposed that a system for assessingthe results of any support provided needsto be implemented. This also means thatauthorities and societies are entitled to speakup and that international organizations shouldbe ready to listen very carefully to what theyhave to say about the impact of any assistance.Accountability requires that international andregional organizations must be able to sayno to a request from a particular country.

However, this is complicated because thereare no systematic benchmarks or guidelines inthis respect.

The ongoing situation in the MENAregion was seen to pose a critical challengefor the UN system, with one participantcommenting that failure of the UN to proverelevant will lead countries to look elsewherefor support. Whereas, if the UN is successfulin understanding and reacting to the ArabSpring events, it would lead to tremendous

opportunities for the UN not only in terms of


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its perception in the region but also in termsof advancing democracy and human rightsin the region and elsewhere. Success will,

however, depend on the UN recognizing theparticular elements of these events (see Box4).

Box 4: The Arab Spring: Key factors at play in political transitions Democracy in itself is increasingly perceived as a human right and is being called for as such.

Civil society has proven to be a driver of the process, with the youth being particularly

influential.

Women have played a critical role, with some suggesting that the international community hasbeen quite blind to the enormity and diversity of women involved in the revolutions.

The role of religion has been signicant, possibly presenting a dilemma to an international

community that tends to place priority on a secular legal understanding of the concept ofhuman rights. It was argued that both constitution making and the implementation of ademocratic framework required a process that was truly reflective of the voices that are part ofthat democracy.

Traditional institutions such as political parties and parliament are being questioned,

not so much because of their linkage with old governments, but because of their lack ofeffectiveness. Participants also raised caution, however, against seeing the failure ofpolitical structures as an excuse for no longer working with them as opposed to the long term

strengthening of these institutions.

If the UN is to use its comparativeadvantages in supporting democraticprocesses, it needs to find a way of betterusing the assets it already has at its disposal.These include the following:

Normative power: the UN is the primaryglobal institution for establishing norms

of international law. This has particularvalue in putting limits on the culturalrelativism argument in the human rightsfield and will undoubtedly play a similarrole in the area of democracy. While theneed for consensus by the Member Statestends to bring out norms and solutionsbased on the lowest common denominator,the Secretary-General has been successfulat using his guidance notes (such as theGuidance Note on Democracy) as a meansof advancing the democracy agenda within

the UN.

Convening power, at the global, regional,national and local level: The UN hastremendous convening power whereverand whenever it wishes to wield it. It wassuggested that the UN should not attemptto use this power to control a process butrather should allow processes to moveforward with their own momentum. The

goal of the UN and others should be tokeep the discussion about democracy andrights open rather than trying to speak foror represent communities. One participantadvocated a focus on South-Southexperience by bringing more recipientcountries into discussions.

Power of legitimacy: UN legitimacy is alarge part of its strength. Peoples belief inthe legitimacy of an organization is a sourceof power, and this is particularly so for an

organization like the UN which has to rely


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Box 5: Strengthening the linkagesbetween democracy and human rightsat the UNIn looking at how to move the agencies anddepartments of the UN closer together inorder to strengthen the linkage betweendemocracy and human rights, a number of

suggestions were made: Stressing the concept of the inseparable

linkage between democracy and humanrights from the very top of the UN;

Making additional efforts to disseminate

human rights and democracy buildingapproaches to development;

Integrating human rights and democracy

building approaches in relevant programsand projects at the global, regional andcountry levels;

Ensuring greater professionalcompetence, particularly having wellinformed and well trained staff in thefield;

Dedicating more funding specically

to human rights based democraticgovernance to help shift the focus.

on persuasion, rather than other incentives(financial, military) to exercise influence.

Protective power:While difficult toimplement and not used enough, this is animportant and powerful asset of the UN.

Disseminating power: The UN has atremendous power for messages to bedisseminated around the world through itsextensive global outreach. This could be

maximized even further if the organizationexploits new communication technologies.

Power to inspire: The UN can lendinspiration and power to leaders, whichhas so far been particularly evident aroundissues of environmental protection. Thehuman rights and democracy agenda maybenefit from this experience.

Power of knowledge: The UN holds atremendous databank of best practices and

lessons learned which should be activelydrawn on and disseminated.

UN Coherence in BuildingSustainable Democratic

Governance Based on theRule of Law

The third panel focused on UN coherencefrom a number of angles: conceptualcoherence of a rights based approach todemocracy, coherence in UN implementation,and coherence in the UNs approach tocivic engagement around the issue ofdemocratization.

In terms of conceptual coherence, themeeting argued that the connections between

human rights and democracy have been


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clearly made in both academic writings andnormative frameworks. The scaffolding thatholds up the fragile edifice of democracy iscomposed of a human rights framework,which embraces all their categories: civil,cultural, economic, political and social. Inoperational terms, it consists of the following:voting and political participation as definedas human rights in the ICCPR; prioritizingfreedom of association and assembly and

freedom of expression and opinion, includingan independent media; instituting a pluralisticsystem in which opposition parties arenot perceived as enemies but as a constantchallenge to those in power to do better orto step down when the electorate decides;a constitutional system upholding humanrights, democratic principles, the rule of law,protection of minorities and human rightsbeing protected in the constitution againsttemporary majoritarian excesses.

These are all concepts brought togetherin UN policy documents including theUNs Agenda for Democratization (Boutros-Ghali, 1996) and the more recent Secretary-Generals Guidance Note on Democracy(UN Secretary-General, 2009b). Participantsquestioned, however, what this meantpractically for the UN and, in particular,where the UN would find the resources fordemocracy to occupy a sufficiently high levelof priority in the UN system to ensure thecontinuum of engagement necessary.

A related concern was that the differentUN offices occupy different points on thecontinuum between democracy and humanrights. The concept of One UN was arguablystill more a concept than a reality, and thisaffected the UNs ability to provide long termsupport given that democratic transitions areincomplete and unsustainable if they fail toinclude appropriate institutional reforms.

Participants referred to arguments and

lack of clarity about what weight should be

given to universal versus exceptional rightsand noted that there is a need for coherenceabout exactly to which human rights theinternational community gives priority.Many argued that real democracy mustinvolve a consultative process and said thatharm could be done when the internationalcommunity spoke about rights on behalf ofpeople who can speak for themselves butwhose opinions the international community

may not find comfortable. One participantqueried what the UNs response would be if alaw came into being through fully democraticprocesses that supported genital mutilationand was supported by the majority of thepopulation.

It was argued that the role of theinternational community should not be topromote a particular model of democracy,but rather to assist people with inclusive andparticipatory dialogue processes through the

use of good examples. Others suggested thata proper role for the UN was to promotedialogue on human rights and ensure thatthe necessary resources for such dialogue areavailable.

It was also argued that the role ofthe international community is to offersubstantive input based on internationallaw and principles. Furthermore, internalmechanisms must be available within the UNto learn from its work and to guide the UN

towards objectives that are in line with itsfundamental principles and goals, rather thanbeing steered by events. So the internationalcommunity is there not only to promotedialogue and make available the necessaryresources but also to play a constructiverole through engaging in consultationsand sharing international experience, whileinsisting on internationally accepted normsand standards.

Participants discussed coherence among

international and regional organizations


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Box 6: Nepal: The importance of dialogue in democracy buildingNepal illustrates the importance of dialogue in building a democratic framework for a country, aswell as the role of international norms. Following the signing of a peace treaty in 2008, the newlyelected Nepalese Constituent Assembly was tasked with writing a new constitution. Given thepost-conflict multicultural context within which the Assembly operated, the interim constitutionrequired it to make decisions by consensus. This holistic concept went beyond the proceduraland substantive definitions of democracy. It extended to consensus democracy and deliberativedemocracy both as a means of making decisions and as an outcome.

Given the very fractured state of the community, members of the Constituent Assembly agreed

that, since Nepal had ratified a number of international human rights instruments, the preambleto the Constitution should recognize the principles of the UN Charter. In this way, a rightsbased framework was established on which everyone could agree and then discuss how thiscould work in the Nepalese context. The example of the issue of nationality was given, whichis recognized in international law. In Nepal, the language of rights concerning nationalitywas all encompassing and dynamic, guaranteeing rights to all recognized groups in Nepal andestablishing it as a crime to treat anyone as untouchable in any context. The magnitude of theserights is seen as a phenomenal means of social transformation in Nepal.

in their civic engagement in countries

undergoing democratic transitions. One ofthe challenges is the need for a consistentpresence in country to sustain an effectiverelationship with civil society. This is notavailable to all UN agencies. For the UN,however, the in-country presence also poseschallenges as some agencies are required towork closely with the government, so beingseen to be allied directly or indirectly withthe opposition would make their situationextremely precarious. It was recommendedthat a UN wide effort is needed to improvesupport for civil society organizations that aregenuinely pursuing a democracy and humanrights agenda, even when those organizationsare under tremendous pressure from thegovernment. One participant mentionedthat peacekeeping and special politicalmissions offer a tremendous opportunity toincrease the role and visibility of civil societyorganizations.

Discussion focused on the concern that

international organizations lack sufficient

knowledge about how to deal with

parliaments and often found it easier to workwith civil society. However, parliaments areuniquely relevant in building a sustainabledemocracy based on the rule of law andhuman rights principles. In addition totheir role in legislation, parliaments play akey role in civic education, ensuring thatpeople know what needs to be done andmanaging expectations about what can beachieved. Given this, participants suggestedthat international organizations should focuson strengthening parliament to help makeit part of the solution through supportingactions to increase the representation andthe role of women in parliament, ensuringthere is adequate room for the opposition inparliamentary proceedings, developing andimplementing parliamentary codes of conductand ethics that communicate values to theelectorate, ensuring respect for freedom ofexpression, and focusing on transparency andaccessibility of the parliament to the public.


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Conclusions and

RecommendationsConclusions

The Relationship Between Democracy and Human Rights

Recognizing an interdependent link: Participants agreed that the link betweendemocracy and human rights is interdependent, intricate, mutually supportive and

symbiotic with some participants proposing that the most appropriate term touse is mutually constitutive. Democracy cannot be defined without human rights.Human rights can be protected effectively only in a democratic state. A functionaldemocracy that accommodates diversity, promotes equality and protects individualfreedoms is increasingly becoming the best bet against the concentration of powerin the hands of a few and the abuse of human rights that inevitably results fromit. In turn, the greatest protection of human rights emanates from a sustainabledemocratic framework grounded in the rule of law.

Responding to the calls for democratic governance and rights: The exciting call forchange in Africa and the Middle East was viewed as a combination of a call forsustainable and inclusive democratic governance with a call for rights. Democratic

reforms and the restoration of human rights protections are seen as parts of thesame vision of change. Both democracy and human rights are advancing globally:there are more democratic and free elections taking place throughout the world,and human rights are observed more than ever before. There has also beenadvancement in mechanisms of protection and promotion of human rights. TheArab Spring has re-energized the democracy support community, motivating peopleto act and confirming to the international community that it is on the right track inits efforts to prioritize this issue.

Deepening the understanding of a rights based approach to democracy: Theparticipants struggled with the concept of a rights based approach to democracy.While the rights based approach to development directly changed the quality of

development assistance, a rights based approach to democracy, although equallyvalid, has proved more difficult. Democracy is a complicated and time consumingsystem. Nevertheless, its description as the least worst form of government is justanother version of the phrase best but challenging and uneasy. While buildingdemocracy, it is essential to remember that functionality, effectiveness andefficiency must be among its constitutive features.

Supporting sustainable rights based democracy building: The issue of sustainabilitywas also debated, with participants noting that human rights based democracycan take a long time to build up. Nor is it a linear, cumulative process and itcan collapse easily. A creeping de-democratization can take the form of smalladjustments though affecting important elements of political structures. A

sustainable rights based democracy requires, among other things, that citizens


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are knowledgeable about their rights, thatpublic political participation is encouragedthrough elections and active involvementin local government, and that institutionalaccountability and transparency are ensured.

The UN Role in Promoting and

Supporting a Rights Based

Approach to Democracy

Playing effectively an advocacy role: Participants

identified a tension in the UN systembetween whether the Secretariat is boundto lowest common denominator consensusof UN Member States, or whether it canact independently as an autonomousstakeholder in the promotion of humanrights and democracy. In arguing for thelatter, Article 99 of the UN Charter statesthat The Secretary-General may bring tothe attention of the Security Council anymatter which in his opinion may threaten

the maintenance of international peace andsecurity (United Nations, 1945). This meansthat the Secretary-General does have a distinctresponsibility, determining also the positionof the entire UN Secretariat.

If the UN is to take action on any issue,it must be armed with universal values anduniversal rules. Part of the UNs role is toadd to normative and policy development inthe democracy and human rights field. TheGuidance Note on Democracy is a major

step in this regard. This was produced by theSecretary-General in his independent capacityand, as such, is a high level and influentialdocument. It was recognized that the UN hasthe responsibility to spearhead a discussionon the universality of human rights anddemocracy, based on global experience.

Determining the extent of UNs advocacy rolethroughout the world: The issue of how deeplythe UN should be involved in advocacy forhuman rights based democracy was discussed

in each session of the Round Table. The

bias was generally in favour of a thoughtfulinvolvement, fully taking into accountthe circumstances, and in particular therequirement for national ownership. Wherea community is able to hold a dialogue byitself, the UN should focus on facilitating thatdialogue and enriching it with internationalexperience. The UN can also do much tostrengthen the inclusive nature of communitydialogue by providing additional forums for

participation, particularly reaching out to themore marginalized in the community.

Exploring the UNs potential relationshipwith national, regional and international actors:Attention was raised about the often exclusiverelationship the UN has with the executiveof the countries where it works. This shouldnot be accepted as the norm, and the UNshould attempt to form a broader range ofrelationships, including with parliaments andcivil society and particularly with women

and other disadvantaged groups. In thesame vein, the UNs role would be furtherstrengthened by deepening its partnershipswith regional and international actors thathave already developed regional standards andnormative frameworks for democracy.

Bridging the gap between statements andaction: Moving from policy statements topractical implementation is complicated. TheUN, like other international and regionalactors, prefers to focus on events rather

than process to prevent it from steppingbeyond being a service provider and intothe realm of sovereignty. It is a particularlychallenging situation for external actors to beinvolved deeply in matters such as systems ofgovernance or constitution making that havea decisive impact on the future of the country.Any international support should be based onuniversal values and norms and should alsoprovide comparative knowledge about whathas and has not worked in other places. UN

structural coherence is needed not only in the


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area of human rights and democracy: it is amuch broader problem for the UN to addresson a continuing basis.

Engaging on breaks in the democraticconstitutional order: The Round Tabledeliberated about the role of the UN andother organizations when ruptures in theconstitutional order or unconstitutionaltransitions of government power occur after

democratic elections. While most regionalorganizations have taken a zero tolerancepolicy approach in this respect, the UN isoften the only organization left to engage andprovide assistance in such situations, riskingcriticism either for interference in internalaffairs or for tolerating unconstitutionalpreservation of political power. This leadsto questions about whether the UN shouldinsist on crafting a consistent and systematicapproach to all cases based on democraticnorms and principles or take a more nuanced

case-by-case approach. While the latterargument seemed to hold greater weight, itwas recognized that the lack of consistencycan potentially harm the UNs credibility.

Recommendations

The following key recommendations emergedfrom the Round Table discussions:

5. The relationship between democracy

and human rights is intricate, symbioticand mutually constitutive. A rightsbased approach to democracy groundedin the rule of law is consideredincreasingly the most consistentsafeguard against human rights abuses.The UN should both heed the calls fordemocratic reform as they arise and beinvolved in sustainable human rightsbased democracy building processes.

6. The success of a democracy building

endeavour will be directly affected by

the inclusive and consultative natureof the constitution making process,and human rights standards provide adetailed foundation for these processes.The UN should strive to ensureinclusion and active participation in theconstitution making process and shouldidentify appropriate and sufficientresources to support these processes inthe long term.

7. The UN must identify and mobilizeexisting assets within its system andwork in a unified manner so as to bettermarshal its unique ability to promoterights based democratic processes,especially in relation to disadvantagedand under-represented groups, includingwomen and youth.

8. The UN should continue to lead thediscussion on the universality of human

rights and how the respect, protection,promotion and fulfillment of humanrights are part of the essential frameworkfor effective democratic governance.The UN should consider a peer reviewprocess for democracy in order toassess how Member States are fulfillingobligations made to their people underthe international human rights treatiesthey have ratified.

More specific conclusions and

recommendations are summarized below.These are organized in three groups:

Building an Inclusive Framework forDemocratic Governance based on HumanRights;

Perceptions of the UN and the UNsComparative Advantage; and

UN Coherence in Building SustainableDemocratic Governance based on HumanRights.


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Building an Inclusive Framework

for Democratic Governance based

on Human Rights

The success of democracy building willbe directly affected by the inclusive andconsultative nature of the constitutionmaking process, as much as by the eventualcontents of the constitution. Human rightsstandards and jurisprudence provide a detailedfoundation for processes that are inclusive

and consultative, as well as for the substanceof what is contained in a constitution. Interms of the latter, substantive protectionincludes both the nature of rights to berespected, protected, promoted and fulfilledas well as the institutions needed to ensurethat violations of human rights have a remedyin practice. A governance framework that isnot based on human rights and fundamentalfreedoms will be devoid of the essentialelements for a functioning democracy.

The UN therefore needs to identifyappropriate and sufficient resources tosupport long term constitution makingprocesses to ensure that human rights areprotected and that due process based ona human rights framework establishes fairprocedures so that grievances and violationsof the law can be addressed and so thatsocial conflicts be peacefully resolved.

The UN should also strive to ensureinclusion and active participation in the

constitution making process by as broad arepresentation of the society as possible.

All participants in the constitution makingprocess require enough time to considerproperly the range of political, economicand cultural factors that must be addressedin the new constitution. The internationalcommunity should refrain from pushingto reduce the time taken for constitutionmaking. To do so potentially diminishesthe effectiveness of the process and

reduces the substantive quality of the end

document.

The role of the UN in a constitutionmaking exercise should be focused onenhancing dialogue and giving voice toall relevant actors in the political process,including in particular more marginalizedand disadvantaged groups in a society.

The Organization should providecomparative knowledge and experiences

from inclusive and participatoryconstitution building processes, especiallythose drawn from the Global South.

The UN should build on the expertiserelevant to different aspects of constitutionmaking from within its system, includingOHCHR which has the lead on humanrights, as well as from intergovernmentalorganizations engaged in inclusive politicaldialogue, regional organizations and non-governmental organizations that work inthis field.

The UN should also focus on advocatingfor, as well as financially supporting,inclusive and participatory processes.

Perceptions of the UN and the UNs

Comparative Advantage

The UN needs to identify more creativeways of broadening the groups it interactswith in order to counter concerns

about bias towards the executive andto ensure effective engagement in thedemocratization process. The Secretary-Generals Guidance Note on ConstitutionMaking (UN Secretary-General, 2009a)provides guidance for identifying therelevant groups in society that should beconsulted in a constitution making process,including women, youth and religiousminorities.

The UN should make more effort to use

its comparative advantages and assets


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including its normative, convening,disseminating and protective powers inorder to enhance its role promoting rightsbased democracy. The establishment of theUN Coordination and Resource Group hasalready played a useful coordinating role inthis regard; and the various UN agenciesshould be encouraged to collaborate witheach other more actively on democracyassistance.

UN Coherence in Building

Sustainable Democratic

Governance based on Human

Rights

The UN should continue to lead thediscussion on the universality of humanrights and how respect, protection,promotion and fulfillment of human rightsprovides part of the essential framework foreffective democratic governance. No other

organization has the legitimacy to assumethis role. The UN Secretariat and theSecretary-General can play an importantrole in furthering policy, without having toresort to the lowest common denominatorapproach.

Although there is no one formula for theestablishment, functioning and evolutionof democratic governance, the UN shouldnot hesitate to speak out strongly whendemocratic governance is being eroded and

human rights are violated. The UN should act, through all relevant

mechanisms and processes, to encourageStates that are not yet democratic (orare nominally democratic but do notin practice protect human rights) tocarry out democratic reforms that willcreate open, pluralistic societies based onfreedom of expression, association andassembly, democratic electoral law and anindependent judiciary, as well as societies

firmly rooted in democratic governance

as reflected by the vote of the people inregularly held, open and fair elections.

The UN should consider a peer reviewprocess for democracy, along the linesof the Universal Periodic Review (UPR)mechanism established by the HumanRights Council. As part of the UPR, aswell as reporting to relevant treaty bodies,States should be encouraged to declare

what actions they have taken to establishdemocratic governance or to strengthentheir democracies and to indicate how theyare fulfilling the obligations made to theirpeople in the international human rightstreaties they have ratified, as well as in theirconstitutions and laws.


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Democracy and Human


Annexes

ANNEX 1Concept Note and AnnotatedAgenda for the InternationalRound Table on Democracyand Human Rights 11-12July 2011New York, 11-12 July 2011

Concept Note

I. Introduction

1. In November 2007, the Secretary-General requested the development of anorganization-wide strategy that furtherdefines the UN approach to supportingdemocracy, anchoring such a strategy inthe three pillars of UN work, namely, peaceand security, development and humanrights.

2. In response to the aforementioned call bythe Secretary-General, two Round Tableswere organized in New York on 2008 andin 2010. The first one on Democracyfor development and development fordemocracy was held on 12 September2008. It was organized by the UnitedNations Department of Political Affairs(DPA), the United Nations DevelopmentProgramme (UNDP) and the InternationalInstitute for Democracy and ElectoralAssistance (International IDEA). It soughtto identify areas of policy for multilateralaction in the current global context especially by the UN in the field ofdemocracy promotion and support toenhance sustainable development processes.The second one on Democracy, Peace andSecurity, was held under the auspices ofDPA, the UN Department of Peacekeeping

Operations (DPKO), UNDP and

International IDEA on 1-2 March 2010.That Round Table reviewed the UN workat the intersection of democracy assistance,peacemaking, peacekeeping and peacebuilding. Based on case studies coveringAfghanistan, Nepal, Timor Leste, Haiti andWest Africa, the Round Table discussedemerging lessons and identified issues forfurther consideration and follow up.

3. A third round table, focusing onDemocracy and human rights, will beorganized by the UN Office of the HighCommissioner for Human Rights, theUnited Nations Department of PoliticalAffairs (DPA) and the InternationalInstitute for Democracy and ElectoralAssistance (International IDEA). It isscheduled to take place in New York for aday and a half, on 11-12 July 2011.

II. Background: Promoting a

common understanding ofdemocracy principles, norms and

values

4. The perception and understanding ofthe concept of democracy in its variousdimensions, processes and implicationshas significantly evolved over the years.Since the early nineties, the GeneralAssembly of the United Nations andthe UN Commission on Human Rights(herein the Commission) have adopted a

host of resolutions dealing with differentaspects of democracy and emphasizingits underpinning principles linked withuniversal values enshrined in the UniversalDeclaration of Human Rights and severalinternational human rights instruments. Atthe 2000 UN Summit on the MillenniumDevelopment Goals and the 2005UN World Summit, the internationalcommunity reaffirmed its commitmentto human rights, the rule of law anddemocracy as universal and indivisible core

values and principles of the United Nations.


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5. Drawing on the international humanrights normative framework, the GeneralAssembly and the Commission endeavoredto promote a common understanding ofdemocracy. In 2002, the Commissionadopted a landmark resolution defining itsessential elements, which include:

Respect for human rights andfundamental freedoms,

Freedom of association,

Freedom of expression and opinion,

Access to power and its exercise inaccordance with the rule of law,

The holding of periodic free and fairelections by universal suffrage and bysecret ballot as the expression of the willof the people,

A pluralistic system of political parties

and organizations,

The separation of powers,

The independence of the judiciary,

Transparency and accountability inpublic administration,

Free, independent and pluralistic media.

6. Given the importance and complexityof the concept of democracy, the

Commission mandated the Office ofthe High Commissioner for HumanRights to organize two experts seminarsin 2002 and 2005 on the inter-linkagesand interdependence between democracy,human rights and the rule of law. Theirdeliberations contributed to a betterunderstanding of conceptual and practicalaspects of democracy as a holisticframework of the societal order, embracinghuman, institutional and proceduraldimensions. It was emphasized thatcontemporary constitutionalism, rooted

in domestic legal orders worldwide,recognized that democracy was normativelyand ethically grounded in universal humanrights standards. The findings of theseminars, subsequently taken forward byresolutions of the UN intergovernmentalbodies and developed in other officialdocuments, reiterated the vital linkagebetween democracy, the rule of law, humanrights, and sustainable development and

highlighted common challenges to them,including:

Undemocratic accession to, and theexercise of, power;

Poverty and social exclusion;

Disregard for human rights;

Discrimination and discriminatorypractices, deprivation of access to justiceby disadvantaged groups;

Threats to human security and theerosion of the rule of law, inter alia, inthe context of combating terrorism;

Armed conicts and violence;

Capacity gaps manifested, inter alia,by weak and dysfunctional governanceinstitutions,

Absence of democratic accountability.

7. As the UN strives to provide adequatesupport to the countries confrontedwith serious situations threatening theirpolitical, social and economic stabilityand the welfare of their populations,there is a need to elaborate effective,responsive and coherent strategies to assistdemocratization processes and counterchallenges to democracy. These strategiesshould be based on the full recognitionof the interaction between democracyand human rights. As highlighted in the

Guidance Note of the Secretary-General


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Democracy and Human

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