Ecuador

PERMANENT COUNCIL OF THE ORGANIZATION OF AMERICAN STATES GT/CDI-2/01 add. 7

6 August 2001
Original: Spanish

Working Group to Study the

Draft Inter-American Democratic Charter

COMMENTS AND PROPOSALS BY MEMBER STATES
REGARDING THE DRAFT INTER-AMERICAN DEMOCRATIC CHARTER

Ecuador

STATEMENT BY THE PERMANENT MISSION OF ECUADOR
ON THE INTER-AMERICAN DEMOCRATIC CHARTER

(Statement made by Ambassador Blasco M. Peñaherrera
at the regular meeting of the Permanent Council of July 11, 2001)

(Edited version)

Mr. Chair:

First of all, my mission fully concurs with the statement made by Ambassador Diego Abente, on behalf the ALADI group, regarding the procedure we will follow, our approach to consideration of this topic, the timetable approved, etc. We would therefore simply express our views on the topic, which we consider to be of basic importance in this regard. What I mean is the nature of the Democratic Charter, the hierarchy of the document, the level of the text we are discussing and will approve. In our view, this is the fundamental topic because, if we briefly review background information and focus in on present circumstances, we have to realize that we may run the risk of producing poor results, as when "the mountain labored."

In terms of background information, it is worth recalling that the 1948 OAS Charter clearly defines the Organization of American States as an organization consisting of countries whose system of government is representative democracy and maintains that representative democracy is the system that should prevail in the Hemisphere. However, the Charter, especially after its amendment by the Protocol of Cartagena, was at one and the same time upholding the principle of OAS identification with representative democracy and reaffirming another principle, which is, to some extent, in conflict with it. And here I am referring to the principle of nonintervention. The second paragraph of Article 2, if I may read it, Mr. Chair, reads: "The Organization of American States has no powers other than those expressly conferred upon it by this Charter, none of whose provisions authorizes it to intervene in matters that are within the internal jurisdiction of the Member States. Consequently, there is clearly a logical conflict, a legal conflict, or a semantic one—whatever you want to call it—between this postulate and the previous one, according to which "representative democracy is an indispensable condition for the stability, peace and development of the region," and the Organization as such should promote and uphold this system.

In support of the foregoing, we should recall the historical facts brought up in our earlier discussions by the distinguished Ambassador and Permanent Representative of Guyana, which surely did not put our Organization in the best possible light with regard to maintaining its commitment to representative democracy and its respect for the principle of nonintervention.

Against this background, the ministers of foreign affairs, gathered in Santiago, Chile, on the occasion of the twenty-first regular session of the General Assembly, expressed "[t]heir decision to adopt efficacious, timely, and expeditious procedures to ensure the promotion and defense of representative democracy, in keeping with the Charter of the Organization of American States," and, to act upon this decision, they adopted a memorable text, resolution 1080, which establishes a procedure to follow "in the event of any occurrences giving rise to the sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states." That step was of the utmost importance and was greeted as a genuine melding of the OAS with representative democracy and as the launching of a different era in the history of the peoples of the Hemisphere. However, it also became apparent that the exclusive implementation of resolution 1080 was not sufficient to support the obvious "intervention" of the OAS in "in matters that are within the internal jurisdiction of the Member States," because that was not possible owing to the categorical provision of the Charter that I cited earlier, which could not be weakened or sidestepped by a mere General Assembly resolution.

Thus it became essential to take a firm step forward by adopting in Washington, D.C., the protocol of amendment which authorized the Organization "to suspend" the right of governments installed in member states by the use of force to be represented in the Organization. Article 9 of the Charter entrusts the General Assembly, for the first time, clearly and explicitly, with adopting said suspension in the specific case, I repeat, when a "democratically constituted government has been overthrown by force." Consequently, the Protocol of Washington resolved the contradiction and the conflict: support for and exercise of representative democracy versus the principle of nonintervention, in favor of the first and to the detriment of the second. To that end, consideration was surely given to the judicious statement of the foreign minister of the Republic of Uruguay, Dr. Eduardo Rodríguez Larreta, according to which "the principle of nonintervention cannot be invoked to counter all other principles," but it was done, I repeat, exclusively with regard to the specific case of "government overthrown by force."

Time elapsed and situations arose—forgive me, but I have to refer to them by name—the cases of Peru and Haiti. One of then was fortunately resolved in the best possible terms, and the other is still awaiting a solution. These cases showed us that, in addition to the use of force, there is another danger, another risk to democracy, and that is the abuse of power by the government or the governed. In other words, the conventional case of the coup d’état itself, which had not been taken into account by the drafters of the 1948 Charter or by its protocols until the Protocol of Washington. And the problem was much more complex because it was no longer a question of the relevant organs of the OAS responding to an event that could almost be assessed in objective terms, such as the overthrow of a legitimate government by an act of force. At issue now was the case of governments that had lost their democratic essence or classification because of an abuse of power. What was therefore involved was to judge and examine what had occurred in these countries, to assess the acts of leaders and governments, and to classify them as futile or as harmful to democracy, as contrary to domestic legal order and constitutional legitimacy, and thus as sufficient to warrant "suspension" from participation in the Organization.

In addition, the appearance of a third risk to democracy was becoming apparent—a risk as serious as and even more serious than the earlier ones. This was the risk, not of an overthrow by force or the abuse of power, but rather abuse of the opposition, in other words, the risk of anarchy, which is the worst risk to democracy because it is also, inevitably, the preamble to tyranny.

This brings us to the proposals made by the illustrious foreign minister of Peru, Javier Pérez de Cuellar, which were taken up by the heads of state and government of the Hemisphere, gathered at the Quebec Summit, whose mandate is to "reinforce OAS instruments for the active defense of representative democracy," consisting basically in the power to exclude from the Organization’s organs and activities those member state governments in which there has been "any unconstitutional alteration or interruption of the democratic order."

Consequently, Mr. Chair and distinguished Ambassadors, we find ourselves in a similar and even more complex situation in which a decision was taken to sign a protocol of amendment to legitimize resolution 1080 and the Commitment of Santiago and to make them viable. By themselves, these texts could not have empowered the Organization to "suspend" the right of a government installed by force to participate in OAS activities. This is true because if we now want to take this important step forward—in other words, to confer the power no longer to "suspend" but to "exclude" from the Organization a government or a leader that has caused or resulted from something that is very difficult to assess objectively, namely "any unconstitutional alteration or interruption of the democratic order," there is no other solution but to move forward with resolve, through the adoption and signing of a protocol of amendment and not a simple declaration or resolution.

Clearly, this procedure is fraught with difficulties. One might think, therefore, that the earlier process could be repeated, that is, producing a new Santiago Commitment or a new resolution 1080 and then, with all due caution, moving toward the adoption of a protocol of amendment which settles things once and for all. However, this is not possible. It does not seem possible because we have created so many expectations in the Hemisphere, and perhaps worldwide, that we cannot, as I said at the start of my remarks, run the risk of producing "a mountain in labor."

The Director of the Office of Public Information told us that just a few hours after the opening of the Web page portal, we had received a dozen or more individual and group proposals on the contents of the Charter. This suggests that we will be receiving a flood of initiatives, a torrent of requests and suggestions, in response to which we cannot produce a document that fails to solve the basic problem: entrusting the Organization with intervening in matters within the internal jurisdiction of states and intervening in two ways—avoiding the abuse of power and abuse of the opposition. These two risks to democracy must be addressed. They must be duly and vigorously avoided. My delegation therefore thinks that in the course of the next few days we have to think in depth of the question of the appropriate hierarchy, rank, or nature of the document we will be negotiating, before we consider the other merely formal or complementary aspects.

Lastly, Mr. Chair, regarding consultations with the Inter-American Juridical Committee, my delegation agrees with the proposal that they should be immediate and comprehensive. In my view, there is no danger that the Committee will tell us that it will meet only on July 30 and will be not be able to give us an opinion until the end of August. According to the Annual Report of the CJI (CP/doc.3406/01) of January 23, 2001, the Inter-American Juridical Committee has already dealt with the issue of finding a legal solution to the problem of strengthening and promoting democracy and has adopted a resolution, attached to which is a dissenting vote by the distinguished jurist Dr. Eduardo Vio Grossi, calling for a study, which has probably already been done or may be done shortly. Hence the thorough consultations with the CJI may be very useful and positive. No one cares about whether the Permanent Council will do it all. Rather the task should be well done and we should take to Lima a document that will not be susceptible to objections either of a formal nature or, even less so, of an important conceptual nature, like those I have ventured to discuss.

Thank you, Mr. Chair. I apologize for having spoken at length, which is not my custom.