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How Can Parity Be More Proportional?

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International diplomats located in Bosnia-Herzegovina have recently launched an initiative requesting the Parliament of one of Bosnia-Herzegovina’s two entities, the Federation, to reconstitute its upper chamber, the House of Peoples, in line with „more proportional representation“. Yet, how can representation in the House of Peoples be more proportional, when already based on the principle of parity? Sounds absurd, doesn’t it? Representation can be based either on the principle of proportionality or on the principle of parity. When based on the principle of parity, it cannot possibly be more proportional. Moreover, such an initiative encroaches on the sovereign right of that very Parliament to constitute and reconstitute itself, without external interference.

Indeed, what does sovereignty mean in the present-day Bosnia-Herzegovina? In the rest of Europe it has been adopted, almost axiomatically, in the traditions of both Locke and Rousseau, that sovereignty is indivisible and inalienable. For, the will of the people, as the expression of sovereignty, can not be divided; otherwise, it ceases to be the will of the people and becomes a collection of individual wills and then the people can only be a collection of individuals. Also, sovereignty can not be alienated from its bearer: power may be transferred, but not will; it is impossible for any organ to exercise the sovereign will save the sovereign body itself. The state, as a state, can no more alienate its sovereignty than a man can alienate his will and remain a man. There is but one possible bearer of sovereignty, the people.

In Bosnia-Herzegovina, it has been accepted, no less axiomatically, in the tradition of its long-negotiated partition sponsored by international envoys, that this country’s sovereignty can easily be divided, alienated from its people as a whole and transferred to its constituent ethnic elements and then consumed by its three ethnic oligarchies in the form of unrestrained political power over the pieces of territory assigned to them in the process of partition. Actually, such a divided sovereignty is treated as transferred to these oligarchies and consumed in the form of their private property over the resources found on the given pieces of territory.

Thus, whereas sovereignty is elsewhere treated as generated by a contract signed by free individuals, who thereby constitute themselves as the people and sovereignty as their general free will, in Bosnia-Herzegovina sovereignty is treated as dissolved by a contract signed, under the auspices of international envoys, by its three major ethnic groups, renamed for that purpose as ‘constituent peoples’, who thereby construct only a provisional state structure with no declared or acting bearer of sovereignty. ‘Constituent peoples’ are perceived as the contractors who should presumably be represented on the basis of the principle of parity in the parliamentary institutions, on the levels of both state and its two ‘entities’ (Federation of BiH and Republika Srpska), and it is only their three wills that are taken into account, although even they are not treated as sovereign, either, but only as dependent on each other’s acquiescence.

Moreover, yet another part of the country’s divided sovereignty has been transferred to the so-called High Representative (a diplomat appointed by major international powers), whose will may reign supreme over particular wills of the oligarchies claiming to represent their respective ‘constituent peoples’. In this sense, as a part of the country’s Constitution, the High Representative comes closest to the notion of the sovereign, although in practice this person rarely exercises his will and imposes his decisions on the three oligarchies in question. Still, the position in the Constitution makes the High Representative irremovable from the country’s legal structure, in spite of the permanent efforts of the three ethnic oligarchies to eliminate this potential threat to their unrestrained power.

Yet, is such a multiple division and transfer of sovereignty truly a part of the Bosnian Constitution, or it is rather an arbitrary interpretation of the country’s constitutional structure by both foreign diplomats and local politicians? In the preamble of the country’s Constitution one can really find its sovereignty divided among several different categories, positioned as sovereignty’s bearers:

Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows.(The Dayton Peace Agreement, Annex 4, The Constitution of Bosnia-Herzegovina)

A similar formula can be found in the Washington Agreement (1994), which preceded the Dayton Peace Agreement (1995) and served as the basis for creation of the Federation of BiH, as one of Bosnia’s two entities:

Bosniacs and Croats, as constituent peoples (along with Others) and citizens of the Republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation, which is composed of federal units with equal rights and responsibilities.

Here sovereignty is divided between Bosniacs, Croats and others – whatever their ethnic identity or a lack of identity – and they are all treated as possessing a double identity,first as constituent peoples and then as citizens of the Republic of Bosnia and Herzegovina. For, the form ‘constituent peoples (along with others)’ presupposes that ‘others’ – whatever their ethnic identity or a lack of identity – are also to be treated as ‘constituent peoples’, along with Bosniacs and Croats. By analogy, Bosniacs, Croats, and Serbs, along with Others, are to be treated as both ‘constituent peoples’ and ‘citizens of Bosnia and Herzegovina’ in the Dayton Peace Agreement’s Annex 4.But who can actually be proclaimed the bearer of sovereignty on the basis of these two constitutional acts?

Following the modern theories of sovereignty mentioned above, if sovereignty is to be regarded as indivisible and if, accordingly, there can be only one bearer, then the bearer must be the citizens of Bosnia-Herzegovina, acting as a whole. Then the ‘constituent peoples’ (Bosniacs, Croats, and Serbs, along with Others) are to be understood simply as the constituent elements of the whole, which cannot be treated as multiple bearers of sovereignty. And then the citizens may be represented in a unicameral parliament, founded on the principle of proportionality.

On the other hand, if we take sovereignty as divisible, the ‘constituent peoples’ maywell be regarded as its multiple bearers. Then, however, these ‘constituent peoples’ are not to be reduced only to Bosniacs, Croats and Serbs: the preambles used in both of these constitutional documents suggest that the category of Others is to be regarded as equal to the categories of Bosniacs, Croats and Serbs.

Constitution makers, obviously, had no clear answer to the question of sovereignty’s (in)divisibility in the case of Bosnia-Herzegovina: instead of a formulation that would follow the principle of sovereignty’s indivisibility (for example, „Bosniacs, Croats, and Serbs (along with Others) as citizens of Bosnia-Herzegovina“), they introduced the ‘constituent peoples’ as parallel to the citizens of Bosnia-Herzegovina and thus proposed a form of shared sovereignty between the citizens and the ‘constituent peoples’. This shared sovereignty is reflected in the structure of the parliamentary institutions of Bosnia-Herzegovina and both of its entities: all the parliaments are bicameral, the lower chambers representing the citizens on the basis of election results in accordance with the principle of proportionality, and the upper chambers representing the ‘constituent peoples’ on the basis of the principle of parity.

Yet, even such relative consistency has ceased to exist in the practical implementation of these two principles. In the the upper chamber of the Parliamentary Assembly of Bosnia-Herzegovina, the House of Peoples, the principle of parity is applied only to representatives of Bosniacs, Croats and Serbs (each represented with 5 seats), while Others are totally absent, as if they do not exist in the Constitution’s preamble among ‘constituent peoples’, along with Bosniacs, Croats and Serbs. In the upper chamber of the Parliament of the Federation of BiH, the House of Peoples, the principle of parity is again applied only to representatives of Bosniacs, Croats and Serbs (each represented with 17 seats), while the number of representatives of Others is arbitrarily reduced to only 7 seats, as if Others are not to be found among ‘constituent peoples’ in the Constitution’s preamble, along with Bosniacs, Croats and Serbs, and as if the principle of parity can be applied selectively or in some reduced manner. Similarly, in the upper chamber of the Parliament of Republika Srpska, the Council of Peoples, parity is applied again only to Serbs, Bosniacs and Croats (each represented with 8 seats), while Others are represented with only 4 seats, as if they have not been put into the category of ‘constituent peoples’, along with Serbs, Bosniacs and Croats. In other words, even if we theoretically accept the possibility that sovereignty may be divided between the ‘constituent peoples’ and the citizens of Bosnia-Herzegovina, such shared sovereignty is in its constitutional implementation distorted to such an extent that only Bosniacs, Croats and Serbs are recognized as ‘constituent’, whereas Others are sometimes treated as partially constituent, with a reduced number of seats, and sometimes as non-constituent, that is, practically non-existent!

Obviously, when the principle of parity is applied in such a selective manner, it ceases to function as parity. Otherwise, Others would be represented in all these parliamentary institutions on the basis of parity, along with Bosniacs, Croats and Serbs. And then, it only means that Others have been permanently discriminated in the political reality of Bosnia-Herzegovina and that such a constitutional discrimination must be removed if the model of shared sovereignty is to be applied at all. If not, then full sovereignty must be given back to the citizens of Bosnia-Herzegovina, regardless of whether they link their identity to any of its ethnic groups or not. And that has to be reflected in the structure of all its parliamentary institutions: the Houses of Peoples should be abolished and the parliaments should then become unicameral, so that only the citizens would be represented in the Houses of Representatives, based on the principle of proportionality and the principle one person/one vote. Of course, for that purpose the country should get a new constitution, adopted by its own Constitutional Assembly, instead of the one tailored in such an inconsistent (and theoretically problematic) manner by foreign diplomats as a part of the international peace treaty.

However, the international diplomats calling for „more proportional representation“  obviously do not distinguish between, and directly mix up, the principle of proportionality and the principle of parity. They assume that the House of Peoples in the Parliament of the Federation of BiH is based on the principle of proportionality, and ask for more proportionality, although it is clear that parity is its sole founding principle. For, political representation can either be proportional, reflecting the proportion of actual votes for actual political parties and candidates, or it can be based on parity, reflecting the parity between the constituent elements of the entire constituency (presumably, of the country’s population as a whole). As already noted above, it is the principle of parity in the House of Peoples that has been violated by under-representation of Others: while Croats, Bosniacs and Serbs are all represented with 17 seats in this House, Others are represented with only 7 seats. Yet, the diplomats do not pay any attention to this violation of the constitutional principle of parity. Instead, they suggest the Parliament to adopt even „more proportional representation“ in its upper chamber (which, in practice, can only be over-representation of one of the groups already represented in line with the principle of parity), so as to even further undermine its founding principle of parity, already violated by the existing under-representation of Others!

Such a legal absurdity is certainly unsustainable and can only lead to the total dissolution of the existing constitutional order in Bosnia-Herzegovina, already distorted by the abandonment of the principle of indivisibility of sovereignty and further undermined by the selective implementation of the principle of parity in the parliaments’ upper chambers. This brings us to a crucial point: either the parliamentary structures in Bosnia-Herzegovina will follow the logic of this request, abolish the existing provisional constitutional order and leave the country without any constitutional order whatsoever, or they will abolish this constitutional order and establish a non-provisional one, based on the principle of sovereignty’s indivisibility, reflected in a unicameral parliament, representing only the citizens of Bosnia-Herzegovina as a whole, regardless of their ethnic identity or a lack of it.

It is up to the parliamentarians. They may follow the principle of sovereignty as applied in the rest of the European countries, or obey the diplomats’ request, whatever the price for the country’s constitutional order. As for the diplomats, whoever they are, one should finally ask whether they would ever apply in their own countries any of the models they advocate for Bosnia.

Dr. Zlatko Hadžidedić is the founder and director of the Center for Nationalism Studies, in Sarajevo, Bosnia-Herzegovina (www.nationalismstudies.org).

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New constructivism needed towards Europe’s East

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Authors: Eugene Matos de Lara and Audrey Beaulieu

On the historic date of 0March 08th – International Women’s Day, a large number of international affairs specialists gathered for the second consecutive summit in Vienna, Austria. This leg of the Vienna Process event titled: “Europe – Future – Neighbourhood at 75: Disruptions Recalibration Continuity”. The conference, jointly organized by four different entities (the International Institute for Middle East and Balkan Studies IFIMES, Media Platform Modern Diplomacy, Scientific Journal European Perspectives, and Action Platform Culture for Peace) with the support of the Diplomatic Academy of Vienna, was aimed at discussing the future of Europe and its neighbourhood in the wake of its old and new challenges.

This highly anticipated conference gathered over twenty high ranking speakers from three continents, and the viewers from Australia to Canada and from Chile to Far East. The day was filled by three panels focusing on the rethinking and revisiting Europe and its three equally important neighbourhoods: Euro-Med, Eastern and trans-Atlantic (or as the Romano Prodi’s EU Commission coined it back in 2000s – “from Morocco to Russia – everything but the institutions”); the socio-political and economic greening; as well as the legacy of WWII, Nuremberg Trials, the European Human Rights Charter and their relevance in the 21st century,

The event was probably the largest gathering since the beginning of 2021 for this part of Europe.

Along with the two acting State Presidents, the event was endorsed by the keynote of the EU Commissioner for European Neighbourhood and Enlargement, Excellency Olivér Várhelyi. The following lines are short transcript of what he has said opening the Vienna Process event:

The COVID-19 (C-19) has brought numerous challenges to the table in terms of cooperation, adaptation but, mostly, resilience. As the crisis may be considered as a breaking point by some, European Commissioner for Neighborhood and Enlargement, Excellency Várhelyi, insisted on the opportunity emerging from it for the European Union (EU) and Eastern Europe to reinforce their collaboration to build a more stable area of “shared democracy, prosperity, stability and peace”. 

Throughout the crisis, the European Union has been a key actor for Eastern Europe and its response to the virus, providing the region efficient economic and physical support, which have allowed thousands of lives to be saved. However, despite the necessity of this help, the European Union has more significant projects and ambitions regarding its relation with Eastern Europe states. 

In 2020, the EU issued a proposal on the Eastern partnership mostly focused on resilience which unfolds in five pillars. The first pillar is addressed to the reinforcement of investments in the economy and connectivity. It, notably, aims to “further enhance support to small and medium enterprises”. These are EU’s backbone, accounting for over 90% of the business activities; the EU hosts 24 million small businesses. This economic machine together generates more than half of the EU’s GDP. The EU has great interest to keep them afloat during the C-19 crisis. 

The EU parliament in December 2020 reported on the need for the Commission to reevaluate their support to these medium and small enterprises. They need more resources to overcome bureaucratic requirements that will exponentially burden their ability to thrive during and past C-19. Small businesses are recognized as indispensable to achieve innovative and sustainable goals. An example of this are initiatives to incentivize companies to take up e-commerce, yet only 17% of the small businesses in the EU have digitized commerce.  

The second pillar is related to investments in the green transition. While Western Europe has demonstrated a positive approachregarding Paris Agreement goals, Eastern Europe seemed more reluctant. This attitude couldbeexplained by theirstaple-basedeconomy and by more significant matters on their plate, such as corruption and the reinforcement of the rule of law. Thus, the second pillar bridges with the first pillar since environmental issues should influence the investments and the development of small and medium enterprises and the development of the economic sphere. 

The third pillar is about investing in digital transformation. The digital world iscontinuallyevolving, and states need to adapt to this reality, especially considering it could be a pivotal instrument to get the economy back on track. The pandemic has been a great opportunity for countries to develop their digital sector. Enterprises have had to beingenious and proactive in adapting their activities to this new reality, which could be a game-changer for the future. Countries will have to grasp this opportunity and make the best out of it. Investing in technologies could also be profitable to other goals that have been set, such as investments that need to be done in the reinforcement of the rule of law, credible justice reforms and efficient public administration (fourth pillar). Indeed, digitization of information combined with robust cybersecurity platforms is the key to more opened and more transparent administrations. In parallel, other strategie swill need to beelaborated in order to enhance respect of the rule of law and reachdemocratic standards, in fact, a key point to the enlargement of the EU.

Finally, the fifth pillar is about investing in fair and inclusive societies. Eastern Europe countries are real mosaics in terms of ethnicities, religions and languages. Inequalities and social cleavages between these groups are still omnipresent in most Eastern Europe societies, and they need to be addressed to build a more united Europe. Several Eastern European states have elevated policiesthat bridge social ethical and cultural differences in the first place both in their national and EU integration political agenda. Indeed, bridging social gaps isa fundamental action in managing differences and for the upbringing of a healthy democracy.

The next reunion regarding the partnership will take place next fall and focus on three critical matters: recovery, resilience and reform. Although the COVID-19 crisis cannot forever guide interstates initiatives, its consequences have forced the world to adapt to several new realities. Consequently, European countries will need strong measures to recover, and those should be translated by measures addressing the creation of employment and economic growth to stay competitive in international markets. As the EU Commissioner Várhely imentioned, “socio-economic recovery is the absolute priority”, so we should also be expecting opportunities to reform social and political norms to face not only new issues but also trends that were very present in the past that are now simply accelerating.

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What to Do with Extraterritorial Sanctions? EU Responses

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One of the important decisions of the new US administration was its revision of the sanctions policy inherited from President Donald Trump. The “toxic” assets of the departed team include deterioriated relations with the European Union. The divisions between Washington and Brussels have existed since long before Trump’s arrival in the White House. The EU categorically does not accept US extraterritorial sanctions. Back in 1996, the EU Council approved the so-called “Blocking Statute”, designed to protect European businesses from restrictive US measures targeting Cuba, Iran and Libya. For a long time, Washington avoided aggravating relations with the EU, although European companies were subject to hefty fines for violating US sanctions regimes.

The situation deteriorated significantly during the Trump presidency. At least three events served as a cold shower for the EU with respect to the bloc’s relationship with the US. The first was the unilateral withdrawal of the United States from the JCPOA—the “Iranian nuclear deal”. Trump renewed American restrictions on Iran in full, and then significantly expanded them. His demarche forced dozens of large companies from the EU to leave Iran; they were threated by the American authorities with fines and other coercive measures. Brussels was powerless to convince Washington to return to the JCPOA. The EU authorities were also unable to offer their businesses guarantees of reliable protection against punitive measures being taken by the US Treasury and other departments. The second event was Washington’s powerful attack on the Nord Stream 2 pipeline project. Trump has openly opposed the pipeline, although the Obama administration was also against the pipeline. Congress has passed two sanctions laws targeting Russian pipeline projects. The US Congress and the State Department directly warned European business about the threat of sanctions for participating in the project. In addition to Iran and Russia, concern in the EU was also caused by the aggravation of US-Chinese tensions. Brussels distanced itself from Trump’s cavalry attack on China. So far, US restrictions against “Chinese communist military companies”, telecoms and officials have minimally affected the EU. However, Washington aggressively pushed its allies to oust Chinese technology companies. It cannot be ruled out that in the future, US foreign policy towards China will become a problem for Brussels.

For the EU, all these events have become a reason to think about protection from extraterritorial US sanctions. The work on them was carried out by both European expert centres and the European Commission. Currently, we can talk about the formation of a number of strategic goals, the achievement of which should allow the European Union to increase its stability in relation to extraterritorial sanctions of the United States and other countries.

Such goals include the following:

Strengthening the role of the euro in international settlements. Already today, the euro ranks second after the dollar in international payments and reserves. However, unlike the United States, the EU does not use this advantage for political purposes. Many transactions between European businesses and their foreign partners are carried out in US dollars, which makes them more vulnerable to subsequent coercive measures. Calculations in euros could reduce the risk of transactions with those partners against whom the sanctions of the United States or other countries are in effect, but the sanctions of the UN Security Council or the EU itself do not apply. Here the EU authorities have laid serious groundwork and have a good chance of achieving their goal.

1.Creation of payment mechanisms, which cannot be stopped from the outside. INSTEX, a payment channel for humanitarian deals with Iran, is often cited as an example of such mechanisms. In 2020, the first transactions were made. However, success in this area raises questions. INSTEX has been widely advertised by EU politicians, but initial expectations were too high. The mechanism has not yet justified itself, even for humanitarian purposes. The Treasury Department can impose blocking sanctions against INSTEX at any time if it considers that the mechanism is being used to deliberately circumvent US restrictions against Iran. Switzerland’s SHTA mechanism, which is used for humanitarian deals with Iran, looks much better. It was created jointly with the Americans and it should not have any problems with functionality. However, regarding payment mechanisms in the EU, there are not only humanitarian transactions. There’s also the matter of plans to create secure transaction mechanisms in the trade of energy or raw materials; the question of what prospects these have for implementation remains.

2.Ensuring the possibility of unhindered settlements and access to other services for individuals and legal entities in the EU that have come under extraterritorial sanctions. In other words, we are talking about the fact that a citizen or a company from the EU, which fell, for example, under the blocking sanctions of the US Treasury, could make payments within the EU. Now European banks will simply refuse such transactions, and the courts are likely to side with them. In fact, the European Union wants to create infrastructure that has already been created, for example, in Russia. Moscow was considering the establishment of a national payment system even before the large-scale sanctions of 2014. Despite the limited weight of Russia in the global financial system, the country has its own sovereign payment system, which allows its own citizens to carry out transactions on its own territory.

3.Updating the 1996 Blocking Statute. In particular, we are talking about the development of an instrument of compensation for companies that have suffered from extraterritorial sanctions.

4.Creation of information databases in the interests of European companies under the risks of extraterritorial sanctions, as well as the provision of systematic legal assistance to companies that have come under foreign restrictions. In particular, we are talking about assisting European companies and citizens of the EU countries in defending their interests in US courts, as well as using other legal mechanisms, for example, within the WTO.

If necessary—balancing the extraterritorial measures of the United States or other countries with restrictive counter-measures.

However, the EU sanctions agenda is far from limited to the threat of extraterritorial sanctions. Ultimately, the United States is an ally and partner of the EU, which means that the opportunities for smoothing out crisis situations remain broad. Collaboration at the agency level is also highlighted as a recommendation. Moreover, after Trump’s departure, the United States may be more attentive to the concerns of the European Union.

The main priority remains the development of the EU’s own sanctions policy. Here many problems and tasks arise. The main ones include the low speed of decision-making and poor coordination in the implementation of sanctions. The centralisation of sanctions mechanisms in the hands of Brussels is becoming an important task for the European Commission.

The article is published as part of the Valdai Club’s Think Tank project, continuing the collaboration between Valdai and Observer Research Foundation (New Delhi).

From our partner RIAC

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Trinity for Scrutiny: Council of Europe, Human Rights instruments and Citizens

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Building on the tasteful piece written recently by Commissioner Dunja Mijatovic, this article will endeavour to explore further why the Tromsø Convention(Norwegian International Convention on Access to Official Documents)[1], although adopted more than a decade ago, is in fact deserving of much more credit and fuss than it appears to have mustered so far.

To briefly catch everyone up, the Council of Europe (CoE) adopted in 2009 a Convention on Access to Official Documents foreseeing a general and minimal right for all to access public authorities’ official documents. Having entered into force last December, this convention pioneers a uniformed standardised right to obtain official documents and thereby information from official sources.  Evidently, the treaty draws on the pillar values of any and all healthy democracies that are transparency, pluralism and self-development of the individuals making up our civil societies.

Freedom of information, within which the right to access official documents is encompassed, is indeed crucial for a number of reasons. Firstly, it is essential from a somewhat ‘hostile perspective’ in order to oversee public bodies’ conducts and uncover behaviours who clash with Human Rights and might otherwise be sanitized precisely when these call for remediation, sanction and reparation. Secondly, in a ‘friendlier’ outlook, it is indispensable for the purpose of feeding the public debate and thus, allowing for militant democracies, but also to strengthen legitimacy, foster public trust and endorsement of their elected government.

Lastly but perhaps most importantly, it should be pointed out that in a similar manner as the right to life, the freedom of information is in fact a key that opens, if not all, many doors embodied by other ECHR rights such as the freedom of expression and that of thought, procedural guarantees or even the freedom of assembly and association. In effect, without being adequately informed, how could one be aware of their rights and exercise them diligently? Without receiving quality information, how could one forge their convictions and gather with others to share affiliations and work towards a common goal? And without access to verified information, could one really form an educated opinion meant to be expressed freely subsequently?

In addition to being a prerequisite to the proper exercise and enjoyment of other fundamental rights, it also echoes directly with the first article of the ECHR providing for the Contracting Parties’ duty to respect Human Rights – and in reality, render them available to all persons under their jurisdiction. In that sense, the CETS 205 can and should be looked at as a practical example of States fulfilling Human Rights and hence as falling squarely within the same scheme.

Another link certainly worthy of some emphasis is the one that can be made between the advent of such a Treaty and the recent recognition and growing establishment of the right to truth. The right to truth, as devised by Special Rapporteur Louis Joinet in 1996, is made up of several dimensions amongst which there is the right to know. The latter, in turn, involves a right to access archives and historical official documents in order to shed light on past events – and ultimately heal a society. Thus, just like we – the civil society – have a right to know our past so as to reconcile and repair wrongdoings, we also have a right to get acquainted with our present and perhaps prevent wrongdoings at all. Both instruments’ emergence form part of a single reactive movement: the reinforcement and extension of human dignity and a renewed appreciation of individuals through greater access and involvement.

Whilst keeping these elements in mind, let us say a few words about the Convention’s content and characteristics. The project is said to have been guided by the concern of identifying and generalising a core of basic compulsory provisions in a way that will “encourage the Parties to equip themselves with, maintain and reinforce domestic provisions that allow a more extensive right of access, provided that the minimum core is nonetheless implemented.” Hence, this instrument does not purport to be a binding ‘best practice’ guide, but is rather the fruits of a (well-known) compromise resulting in the establishment of a minimum threshold likely to be accepted by the largest majority.

Say we embrace the path taken by the consultative committees and concede that realistic (aka lower) standards will amass more signatures and spread wider its application, what then of an equally realistic rapid examination of the outcome? Indeed, since its adoption in 2009, only ten countries have ratified the Convention whilst the instrument is said to merely reassert what already exists in most internal frameworks of the CoE countries.

The puzzlement does not end there: when looking closer at the contracting parties, one cannot help but notice that the ‘star students’ are MIA. European countries that ranked in 2018 in the top 10 of the world-wide Human Freedom Index[2] such as Switzerland (2nd), Germany (9th), Denmark (4th), or Ireland (7th) are nowhere to be found on the ratification addendum of the Convention. It is hard to imagine why such States that are already doing so well in that area would not want to lead the example and reaffirm principles that match their internal policies.

Commissioner Dunja, for her part, had highlighted that although the majority of CoE’s members have already adopted freedom of information laws on the domestic level, some definite issues remain with regard to their practical enforcement. This referred to disparities in degrees of transparency depending on the public body as well as failures to meet requirements set for proactive disclosure. We may then wonder, provided those trends are correct, if – ironically – there could exist a lack of transparency on those regulations. In other words, if national laws on freedom of information already exist almost everywhere in Europe but they do not satisfy the thresholds put forward by the Convention in practice, civil society should know about it to remedy the situation.

Still, you may wonder: why is it so important that we enquire about, and ensure that, a smooth implementation is possible on the domestic or – if need be – regional level? Because although this article has managed to avoid bringing up COVID-19 so far, the current pandemic only enhances the stakes surrounding an effective freedom of information. As we all know by now, in times of emergency, rapid and impactful decisions have to be taken. These decisions are then in that sense less prone to gather strong consensus and yet more likely to concern the public given the serious nature of the decisions’ object.

The year 2020 has shown that misinformation and somewhat tendentious media coverage of the pandemic’s evolution was damaging enough in terms of civil discontentment and eroding our trust in the Government. But adding to that the withholding of some facts and a lack of transparency on the part of public officials is simply a recipe for disaster.

This can perhaps be better grasped when looking at the cases of France versus Sweden. Civil unrest and vocal dissents have been taking place last year against the French government, said to be lacking transparency on several issues such as shortages of equipment, rationale for measures chosen, allocation of vaccines or even the number of vaccinations. In the fall of last year, a local survey recorded that two-third of the French citizens did not trust their leaders to fight COVID efficiently. The handling of the crisis tainted with obscurity and ambiguities resulted in an unfortunate loss of popularity for President Macron and civil disobedience.

In contrast, the Sweden government remained consistent with its strong stand on, and reputation for, transparency towards its population taking roots notably in a national law favouring public scrutiny adopted in 1766. Their tradition of ‘ultra-transparency’ as is sometimes called is closely related to the country’s culture of shared responsibility and mutual respect between State and citizens. With the national Agency for Public Health taking the lead on the crisis management by remaining very open on the data available and reasons for pursuing collective immunity survey showed in Spring 2020 that nearly 80% of the population entrusted both their health system and the national Agency. Moreover, this ought to be placed against a backdrop where even the King of Sweden did publicly air his reservations regarding the confinement-sceptic management.

Now whatever anyone thinks of the Swedish strategy a posteriori, it must be acknowledged that not only did their information and transparency handling maintain its citizens, numbers show it even did as much as increase the legitimacy of their prime minister. To top it off, Sweden is one of the first to have ratified the CETS 205.

To put it plainly: some countries’ tendencies to filter information, strive to maintain composure and showcase confidence in uncertain times simply proves to be more detrimental than an approach where full transparency and efficient dissemination of available information is endorsed at the risk of revealing some inconsistencies or displaying dubiety in the process.

It is hoped that this can serve as a support for reflection around the understatement of international agreements we may take for granted such as the one 2009 Convention on Access to Official Information and the realisation that in our case, having ratified such a document could be a real game-changer in the second phase of our pandemic and rehabilitate good governance where it has been shattered.


[1]hereinafter referred to in the text as ‘CETS 205’.

[2]Which, for the record, encompasses personal, civil and economic freedoms, and is based on indicators in various areas such as the rule of law, the freedom of expression and information, that of association and assembly as well as civil society.

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