Reform of the OAS Democratic Charter is an urgent necessity

By: Ricardo Israel - 17/02/2025

The OAS “is beginning a complex electoral process with two candidates who have antagonistic positions,” INFOBAE reported a few days ago. They aspire to replace Luis Almagro, who in my opinion performed well, considering the correlation of forces within the institution and the external context, and it would be an appropriate legacy to undertake the necessary and urgent reform of the Democratic Charter (DC), which was born accompanied by much hope, and today, much frustration.

The world has changed and the OAS must adapt, at least in three ways. First, internally, the Charter reflects the environment that existed in 2001, so the region is prepared and has an automatic response to the military coups that abounded in the second half of the last century and to situations such as Alberto Fujimori's self-coup, but it has not yet fully adapted to what Castro-Chavismo brought with it, which is the assault on power from within, usually by taking advantage of a good electoral result to radically modify the constitution, and thus move from democracy to dictatorship.

In a second sense, the changes that the US is experiencing with the second government of President Trump also open a new scenario for the region, so governments should act and influence, but so far there is no unity or proposals, nor ideas to take advantage of the internal change, in the sense that Latinos have a growing political importance having become the first minority, with the ability to define elections, and the countries where they come from have not used this possibility offered by American democracy, as other countries have historically and successfully done.

Thirdly, the region has not adapted to the reality of the relationship between the mother dictatorship of Cuba and Venezuela, since there is a real occupation, since the time of Chavez not only has there been a transfer of resources to Havana, but Havana and its intelligence services make the most relevant strategic decisions, so that issues of this type, not foreseen in 2001, should be incorporated into the Charter as very serious crimes of continuous execution.

Despite its shortcomings, the Charter is a good instrument, one of the best available, superior to other regional institutions, since it constitutes a contribution in two senses, by defining the substance of a democracy and by being an instrument of international law, even a constitutive treaty in more than one sense. However, it needs urgent updating.

There is no doubt that many people doubt it due to the lack of results, but it is a much more powerful instrument than its track record suggests, although for political reasons and the difficulty of achieving the required quorums, its repertoire of sanctions is not applied to those countries that ceased to be democracies and became tyrannies, in some cases linked to organized crime.

In short, there has been no will to do so, neither on the part of the United States, nor on the part of Latin America or the Caribbean of colonial origin other than Spain or Portugal, but the lack of operation should not be a reason to deny its potential, just as the existence of crimes should not make the importance of criminal law disappear. The Charter innovated by stating that “the peoples of America have the right to democracy,” adding the obligation of governments to “promote and defend it,” saying that “democracy is indispensable for stability, peace and development.”

Given the time that has passed since its official appearance, it is essential to incorporate better coercive mechanisms for its compliance. In fact, even today, the Democratic Charter (DC) far exceeds good intentions, since it should be seen as a legal norm, backed by international law and incorporated into many national legislations, so that one day it could serve as the basis for a future constitution of the region, and legally it does not differ from the Atlantic Charter that gave rise to the UN, nor from the Bogotá Charter that created the OAS itself.

By the way, these words may be received with skepticism and even with sarcasm, since dictatorships have not decreased but have increased during its existence, and there is no doubt that not only the lack of will to apply it has had an influence, but also the failure to sanction countries and governments that violate it, since it has not been possible to gather the 2/3 or 34 votes necessary, including the operation of an oil diplomacy in favor of English-speaking or French-speaking nations of the Caribbean, contributing to its failure just as votes were obtained to elect a Secretary General.

For decades there has been a continuous disagreement with the US, regarding mutual responsibility, to such an extent that there has not been any joint initiative either in the economic, social or political spheres, unlike the previous period, with the enthusiasm that was present in the first Summits of the Americas in the 1990s, to such an extent that today China has a strong presence in the entire region, being a very important investor for many countries, a scenario to which Washington was slow to react.

The US sees nothing but drugs and illegal immigration, but the region has not done any better either, as it asked not to get involved and, like Europe, wanted to solve several problems alone, and nothing was achieved, making some of them worse, so much so that it now demands greater attention and involvement.

What can be done to complement the Charter and make it more effective? We are talking about complementing, that is, adding, adding. There are no recommendations that are groundbreaking, since the political balance of the OAS today does not allow it. However, everything is feasible with the current internal and administrative structure of the institution, especially bearing in mind that Castro-Chavez's regime showed the need for an update. In this regard, the US failed in Venezuela, but so has Latin America.

For a reform to be successful, it implies providing the Charter with content that can be applied when there is a violation of democracy, as an example of many other crimes that could also be incorporated to avoid impunity and defend the right to democracy, the basis of the Charter. In that sense, I believe that for a generalized affectation to occur, it would be enough for only one of the essential components of democracy to be affected. On the other hand, an affectation is configured and can be qualified as systematic if it is shown that it is part of a government plan or policy.

It is essential to address the issue of international sanctions, not only against those countries that have become dictatorships in recent years, such as Venezuela or Nicaragua, but also against those governments that, according to Sánchez Berzain, play a paradictatorial role in the region, since, being democracies, in practice they help those who violate the human rights of their people, and should receive the corresponding sanction. In addition, special mention should be made of how Bolivia has moved away from democracy since Evo Morales onwards, as it is enough to observe the number of political prisoners it has today.

What additions to the Charter are we thinking of that could have the support of both the US and Latin America and the Caribbean and serve as an appropriate legacy to the efforts made by Almagro to strengthen democracy? In this regard, it is necessary to define Crimes against Democracy, in the image of crimes of violation of human rights, where responsibility is individual and covers the entire chain, from the torturer to the supreme leader. I am convinced that something similar is needed for the defense of democracy, since for now the responsibility is more political than criminal. In other words, how can we put teeth not only to punish the violation of the Charter but also to prevent Lawfare?

First of all, the proper adaptation to the world we live in today and the way the region fits in. I am talking about the region in general, since as is well known, even the democracy of the United States has been subject to many tensions, a process that I call the “Latin Americanization” of its politics, given the loss of quality and the polarization to which it has been subjected, with the responsibility of both Democrats and Republicans.

As far as Latin America is concerned, the greatest danger to democracy today is not posed by the military coups of the past, but by those governments that denature democracy, taking advantage of its freedoms to suppress political competition and make personal and public freedoms disappear, not only Castro-Chavism, but also authoritarian populism and the growing influence of organized crime in the government of countries, especially drug trafficking, as is the case of Maduro's Venezuela, where all these elements are added.

Secondly, since this is a binding document and not a simple recommendation, when establishing sanctions, these should be incorporated in a clearer and more decisive manner, either in the Charter itself or in a regulation. At one extreme is the theft of an election, as occurred in Venezuela, but there are also other less known situations, which should also receive automatic sanction, since the general principle to be safeguarded is that, since there is a system based on States, governments and their authorities should be punished. In other words, the current system must be reinforced in such a way that there is no impunity for crimes against democracy.

Thirdly, democracy is not only a method to reach power, it is not only elections, but the way in which power is exercised is equally relevant, so it is unacceptable that the Charter is not respected today, nor that governments and rulers who violate it are not punished, sometimes because there has been no will or sometimes simply because the 2/3 could not be met.

What can be done? Since the greatest good is the combination of respect for democracy and human rights, what must be done is to reduce these high quorums, since there is the aforementioned distortion of the support they receive from those governments that, without being dictatorships, favor them by their action or omission, which in practice helps to ensure impunity.

Democracy is one and generally those who give it a surname are not so, and in that sense, the Charter successfully includes five essential elements: respect for human rights and fundamental freedoms; access to power and its exercise subject to the rule of law; the holding of periodic, free, fair elections based on universal and secret suffrage as an expression of the sovereignty of the people; the plural regime of political parties and organizations; and the separation and independence of public powers.

That is, exactly what is violated by the regimes that commit crimes against democracy on a daily basis.

Fifthly, what can be done to prevent the manifestation of the boiled frog syndrome, where democratic forces fall asleep and, unlike a seizure of power, countries slowly become accustomed to the loss of freedoms and the transition to dictatorship? Hence the comparison with a boiled frog that does not jump out of the pot, since it has become accustomed to the water. No one gave it a warning to wake it up either.

In this regard, a proposal in the right direction emerged at the forum “In Defense of Democracy” organized by the Interamerican Institute for Democracy in 2021, where point 4 of the Coral Gables proposal requests that the OAS “issue an annual report on the state of democracy in each of the member countries in application of the essential elements contained in the Interamerican Democratic Charter.” This report would act as a warning signal for countries that are losing their democracy, for which perhaps a traffic light system, including yellow and red, for the struggle of ideas, and the timely public debate to defend democracy.

Sixthly, we should also add that the Charter must be part of an effort to make it important as a central activity of education for democracy, so it should not only be an evaluable knowledge of the educational system, but also an educational objective, so it should appear in the different stages of schooling.

Thus, in the reform of the Charter, language must also be used that makes it accessible not only to scholars, but also to the broadest sectors. In this regard, two examples. First, a text to be read by the broadest layers of the population and on social networks is the preamble to the US Constitution, which for the first time uses words such as “We, the People,” and which can be studied (even memorized) throughout the country’s entire educational system.

A second example could help ensure that, as a by-product of this reform, a Universal Declaration for Democracy emerges, which, with accessible language, could be understood by every student.

In this regard, there is an example that has lost relevance, but is extremely important, and that serves these purposes. The one that comes to mind is the well-known Universal Declaration of Human Rights proclaimed on December 10, 1948 by the General Assembly of the then nascent United Nations, a remarkable document that in only 30 articles contains what are still its basic principles, and it would be well to imitate it.

What is striking about this Document is that it is so clear that everyone understands it, so that it can be taught throughout the world by different educational systems, marking a before and after by providing a common horizon that allows us to differentiate where these rights are violated and where they are respected.

This example serves as a reference to the current situation of democracy, which is going through a complicated period in the region and on the planet, and hence the need and opportunity for a Universal Declaration for Democracy, at least in the Americas, as a complement to the Charter.

Seventh, since there are differences between national constitutions, it is essential to reinforce the incorporation of the legal order of the Americas into them through clear and explicit criteria, essential for the collective defense of the right to democracy, highlighting that there is a set of international legal obligations with democracy, incorporating, for example, in the wording of article 19, the content of articles 3 and 4, as well as the fact that so that it does not apply only to coups d'état, in this new stage the concept of crimes against democracy becomes central.

Eighth, a list of objective criteria must be included to determine a serious violation of the democratic order, in the sense of clear and express criteria, such as periodic elections and separation of powers, that is, key elements of what is understood by democracy. On the other hand, the current wording, in addition to not clarifying what the rupture of the democratic order means, lacks elements or criteria to determine when an violation of the democratic order meets the requirement of being serious, which makes it necessary to incorporate interpretation criteria, such as, for example, that the violation be systematic and widespread, criteria that come from both international criminal law, where they are used to determine crimes against humanity, and also from the jurisdictional sphere, which requires that the violation of human rights be systematic or widespread.

Finally, another reform should be that not only governments can request the application of the Charter, but that other powers such as the legislative or judicial branches can do so on an equal basis, as well as opening up the possibility for citizen organizations and even individuals to do so, as is the case with the UN Convention against Organized Crime, to give it even more force.

@israelzipper

-Master and PhD in Political Science (University of Essex), Bachelor of Laws (University of Barcelona), Lawyer (University of Chile), former presidential candidate, Chile, 2013

«The opinions published herein are the sole responsibility of its author».