A INTRODUCTION

At the drafting stage, many of the terms of the Charter were deliberately cast in language which was both general and rather vague. We have also seen that states were given a generous latitude in the degree to which they signed up to the Charter's obligations. Subject to these qualifications, however, it was intended that the Charter should be treated as imposing real and binding obligations on ratifying states. It was no mere declaration of intent; no mere symbol of the ratifying states’ democratic aspirations. The Charter was to be a serious, treaty-based and legally binding guarantee of the autonomy rights that it proclaimed for local authorities, and the expectation was that the principal means whereby those guarantees might be enforced would be through the Council of Europe's own monitoring of the application of the Charter and the collective pressure of the Council's members which could be brought to bear. Those monitoring procedures and, in particular, the lead role of the Congress of Local and Regional Authorities in them are discussed below in Section D below. Section E contains a note on a selection of recent monitoring recommendations as well as on the two United Kingdom monitoring recommendations issued so far.

Another possibility, however, was that the Charter might become enforceable (on the initiative of local authorities themselves or otherwise) in the domestic courts of the countries to which it applied. There is no direct parallel between the Charter and, for instance, the European Convention on Human Rights or the Treaty on European Union (and the Treaty on the Functioning of the European Union) but those regimes have, in their different ways, produced rights and obligations which are now to be regarded as, first and foremost, enforceable in the domestic courts of the member states. The extent to which that might also be the case, even if to only a more limited degree, in relation to the Charter should also be examined.

I had begun to take an interest in the existence of the European Charter of Local Self-Government in the years before the United Kingdom's signature and ratification of the treaty in 1997 and 1998 but it was in the years following, as the British member of the Group of Independent Experts of the Congress of Local and Regional Authorities of Europe, that I had the opportunity, under conditions of near anonymity, to draft Charter-based monitoring reports and other Charter-related documents. And it had seemed to me at that time that, in the absence of any other published account, a general description and analysis of the Charter was required.

This short book is the result. Drawing on sources entirely in the public domain, it provides a personal view of the Charter's history, its text, the way it has been interpreted and applied, its broader significance and, more tentatively, its future. At some points, the book has a specifically United Kingdom focus but, for the most part, the coverage is Europe-wide.

In the course of the book's preparation, I have accumulated a number of debts. The most important is to my Edinburgh colleague, Dr James Harrison, whose support, especially in reading and commenting on draft material, was enormously valuable. And then to the Edinburgh University Press readers (they know who they were but I do not) who reported sufficiently favourably on the complete draft. I should also mention the staff of the Council of Europe's archives. Their help in tracing some of the historical sources for Chapter 2 was invaluable.

A INTRODUCTION

The European Charter of Local Self-Government was opened for signature on 15 October 1985 but the process which led to that launch had begun much earlier. The Charter is a product of a dynamic within which, in the aftermath of World War II, European elites committed themselves to a rejection of all that had caused such chaos, destruction and loss of life in the previous decades and to the adoption of a new way forward. It was a period of commitment (or of recommitment) to democracy and human rights. The Charter was a child of those times.

But the Charter was not written on a clean slate. Its origins drew on the historical fact of the existence of systems of local government, as evidenced by all the municipalities and other forms of local authority, across Europe – a phenomenon recognised in the preamble to the Charter itself which recites that ‘local authorities are one of the main foundations of any democratic regime’ and that ‘the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member states of the Council of Europe’. Such local government had not, of course, in its origins been democratic but, by the twentieth century, a democratic basis had been broadly established, even if democracy might, in its liberal form, have been periodically eclipsed – notably in Western Europe prior to and during World War II, and in Central and Eastern Europe thereafter. In many countries, the phenomenon of local self-government achieved constitutional or special legal recognition but elsewhere, and even in a country such as the United Kingdom, it was accorded a legitimacy that attracted a normative status. Local self-government not only exists but ought to continue to exist. There might be no ultimate constitutional protection for local self-government and certainly not for any particular form of local self-government – in the United Kingdom it was (and is) comfortably within the formal competence of the sovereign Parliament to reorganise and even to abolish local government – but it was recognised nevertheless that local self-government had a strong claim to survive.

A INTRODUCTION

In the last two chapters an assessment has been offered of the impact of the European Charter of Local Self-Government (‘the Charter’), both in terms of its instrumental contribution to local self-government across the continent and more generally. In this chapter, there is an opportunity to stand back a little from the detail of that discussion and to draw together some rather broader thoughts about the current standing of the Charter and its future. The focus on the Charter's relationship to institutional developments in the Council of Europe is maintained but it is expanded to take into account the Council's own relationship to the European Union and the ways in which the two institutions may develop, with consequences for the Charter.

In undertaking this discussion, the image tentatively adopted will be that of the Charter as a form of institutional barometer in Europe. It could never be claimed that the Charter has, at any point, determined the broader course of events in Europe or that it will do so in the future but it does seem perfectly sensible to view its condition over the years as an indicator of the institutional climate of the continent as a whole. A primary use of barometers is, of course, in forecasting and there will be an attempt to peer into future possibilities at the end of the chapter but, before that, there will be a brief review of European weather conditions since the Charter's origins shortly after World War II.

Though the Charter as institutional barometer will, it is hoped, be a helpful image, its limitations have to be conceded. What is being suggested here is that an understanding of the role of the Charter may contribute to and may, at the same time, benefit from, a wider understanding of the treatybased relationships between states and their intergovernmental institutions which have characterised European developments in an era of great flux, reevaluation and consequent uncertainty. We are living, in post-World War II Europe, in conditions of great novelty in the history of international relations.

A A REMARKABLE TREATY ACHIEVES EUROPE-WIDE COVERAGE

The autumn of 2013 saw the conjunction of two important events for the European Charter of Local Self-Government 1985 (‘the Charter’). On 1 September, the twenty-fifth anniversary of the Charter's coming into force was celebrated. And, in October, there was further celebration of the extension of the Charter's coverage to all the member states of the Council of Europe. On 16 May 2013, San Marino had signed the Charter and, on 29 October, notice of the country's ratification was recorded. These celebrations were rather more subdued than that undertaken for the twentieth birthday of the making of the Charter at a conference in Lisbon in July 2005. But that was in line with the restraints imposed on the Council of Europe, the Charter's parent organisation, by the global financial crisis rather than because of any loss of confidence in the standing of the Charter itself. The Council of Europe's biggest and best-known contribution to international treaty-making has been in the area of human rights with the European Convention on Human Rights and Fundamental Freedoms (‘the echr’) adopted in 1950 but, in the Council's other principal area of focus – the promotion of democracy – the Charter has been its highest-profile product.

For the Council of Europe's principal organ with a remit in this field – the Congress of Local and Regional Authorities of Europe (‘the Congress’) – its responsibilities for the Charter have been its prime concern. The monitoring functions of the Congress will be considered later in this book. But, from time to time in the life of the Charter, the Congress has stepped back from its routine work to publicise and to applaud its own broader contribution to local democracy. Significant Charter birthdays have been celebrated and international conferences have been held; other Congress-promoted events, with a national or regional focus, have also taken place; and, in recent years, the Congress has taken the lead in promoting an initiative in relation to the securing and protection of ‘regional democracy’ in parallel with the protection offered by the Charter at the local level.

A INTRODUCTION

It was urged at the beginning of Chapter 6 that the influence of the European Charter of Local Self-Government was to be measured not only by reference to its impact on local self-government in Europe. Its influence should be assessed by reference to criteria broader than those instrumental consequences. There are other ways in which the Charter can be said to have placed its mark upon the world of international treaties and international organisations. First, it has proved to be, in the rules it lays down and the system for their enforcement it provides, a unique treaty in its own right. This will be elaborated in Section B below. Secondly, the Charter has inspired several related projects. While a ‘Charter of Regional Self-Government’ has proved to be unattainable, the Council of Europe has adopted a ‘Reference Framework on Regional Democracy’ to similar effect (Section C). The Charter has also contributed to a debate about a ‘World Charter of Local Self-Government’ and to the development of national and regional ‘Charters’ beyond Europe (Section D). Thirdly, it is a treaty whose emergence and record have played an important role in the development of institutional relationships within the Council of Europe (Section E).

B A UNIQUE TREATY

In the light of the treatment of the Charter so far, its remarkable features first mentioned in Chapter 1 will be more apparent. Three principal characteristics may be selected.

A Treaty to Entrench Subsidiarity at the Substate Level

In a document recently published by the European Union Committee of Regions, the claim is made that the European Union treaties themselves ‘indirectly recognise local and regional democracy’. That seems to be an extravagant claim. The ‘recognition’ those treaties provide is very, very indirect. On the other hand, when the claim is made on behalf of the Charter, and it is frequently made by the Congress, that it is the sole instrument of international law claiming to set standards for local democracy by conferring ‘rights’ on local authorities, that claim is wholly justifiable. document recently published by the European Union Committee of Regions, the claim is made that the European Union treaties themselves ‘indirectly recognise local and regional democracy’. That seems to be an extravagant claim. The ‘recognition’ those treaties provide is very, very indirect.

A INTRODUCTION

This chapter contains three principal elements. In the first place (in section B) it provides an analysis of the substantive terms of the Charter. In section C, the Charter's ‘incidental’ provisions are discussed. These contain, for instance, the fundamentally important rules which enable states, at the time of ratification of the Charter, to define the extent of their commitment to Charter obligations. And, finally, section D contains analysis of steps taken since the promulgation of the Charter to extend its scope in supplementary protocols – both successful and unsuccessful. The Additional Protocol on the Right to Participate in the Affairs of a Local Authority was adopted by the Council of Europe in 2009.

B THE CHARTER 's SUBSTANTIVE PROVISIONS

In respect of, first, the preamble to the Charter and the preliminary Article 1, and then the provisions of Part II (Articles 2–11), the terms of the Charter (in bold type) and then the Explanatory Report (in italics) are set out, followed by some brief further commentary. The Charter terms are those adopted by the Council of Europe at the end of the process described in Chapter 2. It should be borne in mind, however, that, in accordance with the provisions of Article 12 (discussed in section C below), not all participating states have subscribed to, and declared themselves bound by, all provisions.

The Explanatory Report was adopted by the Conference of Ministers at the same time as the Charter. It has no formal binding force but, after its introductory Sections A (Origins of the Charter) and B (General remarks), Section C of the report, as a commentary on the Charter's provisions, serves to throw additional light on the meaning the Charter's ‘founding fathers’ may be presumed to have intended to give to its terms. It may, therefore, be invoked as an interpretative guide to their meaning, at least in situations where that meaning is considered to be ambiguous. In the terms used in the Explanatory Report's own prefatory paragraphs, the report ‘does not constitute an instrument providing an authoritative interpretation of the text of the Charter, although it may facilitate the understanding of its provisions’.

A INTRODUCTION

In October 2010, the Congress of Local and Regional Authorities of Europe celebrated the twenty-fifth birthday of its child, the European Charter of Local Self-Government. And, in September 2013, the twenty-fifth anniversary of the Charter's coming into force was similarly noted. These celebrations were rather muted in comparison with the bolder ceremonies at the Lisbon Conference held to mark the twentieth anniversary in 2005 but that restraint might be largely explained by the impact of the global financial crisis.

The purpose of this chapter and Chapter 7 is to offer not a further celebration of the Charter but, more soberly, a more objective assessment of the significance of its contribution. In this chapter, the focus remains close to the declared purposes of the Charter and addresses the question of how the Charter has contributed to local autonomy in the Council of Europe member countries while, in Chapter 7, the emphasis will be on the Charter's own qualities as an extraordinary treaty in international law and the ways in which it has contributed to the making of other international agreements. These include the events that led to the formulation in 2009, not of a Charter of Regional Self-Government, though there was once an ambition to achieve such a Charter, but of the Council of Europe's Reference Framework on Regional Democracy and the aspiration for a World Charter of Local Self- Government. That chapter concludes with an assessment of the Charter's input to relationships between the institutions of the Council of Europe.

Looking first, in this chapter, to the Charter's impact on local selfgovernment in the Council of Europe's member states, it may be useful to divide these into two broad groups – with the United Kingdom considered separately at the end. In the first category may be placed the pre-1985 members of the Council of Europe minus Cyprus, Malta, and Turkey. These are the twenty states of western Europe which were members by 1985 and participated (or had the opportunity to participate) in the negotiation of the Charter's text.

A INTRODUCTION

Chapter 4 focused on the means available for enforcement of the obligations taken on by states on ratification of the Charter. On the one hand, there is the possibility of enforcement by domestic courts whose availability depends, from state to state, on the legal status of the Charter in the particular state and on the competence of domestic courts to handle Charter issues. And there is only a scant record of such activity in courts in practice. On the other hand, there is the system of routine monitoring of state compliance by the Congress of Local and Regional Authorities.

Central to both enforcement models is the question of how to interpret and apply the text of the Charter, whether at the hand of national courts or of the Congress monitoring procedures. On the face of it, these processes of interpretation and application are the same sort of activities that one encounters in constitutional or human rights review, and the ways in which such principles may be applied to Charter practice are considered in Section B, with a particular focus on the problems involved. In Section C, however, it is argued that, while those interpretative principles may, indeed, be relevant to Charter application by national courts, they have been largely irrelevant to the Congress monitoring process. The reasons for this and then the consequences for Congress monitoring are explained.

B CHARTER INTERPRETATION

When we say that the systematic monitoring of the states’ performance under the Charter is, on the face of it, the same sort of activity that one encounters with other forms of treaty-based (or indeed constitutional) review, we mean that it is the familiar process of matching state law and practice against the terms of the Charter to establish whether the prescribed standard is being maintained. A court has simply to determine whether the law which has been enacted or the action taken complies with the ‘higher law’ restrictions laid down. But it is not, of course, ‘simple’. Questions of interpretation are necessarily involved and, therefore, questions about how the inevitable linguistic ambiguities in human language are to be resolved. In the case of the Charter, two considerations combine to produce, in its substantive provisions, language which, at key points, is difficult to interpret and apply.

In many cases names of parties change over time. Because a detailed description is not a priority of this book, shortcuts and simplified names are used. Table A.1.1 indicates which parties are included in each family. For the general criteria for the attribution of codes, see Chapter 2.

For four small families no table has been produced:

1. Animalist parties: there is only one such party, namely the PvdD in the Netherlands between 2006 and 2010.

2. Pro-alcohol parties: there are only two instances: the SPP-Beer in 1992–6 in the Czech Republic and the PPPP in 1991–3 in Poland.

3. Feminist parties: three such parties existed in Iceland (WA in 1983–99), Latvia (SS in 1931), and Lithuania (LMP-Women's Party in 1996–2000), in addition to the Slovenian GZS and the Swedish Feminist Initiative (both in EP elections only).

4. Pro-European parties in national elections: the EK in Cyprus has been considered (1981–2001), as well as three Czech parties (SNK in 2002–10, DU in 1996–2002 and US 1998–2002). Most pro-European parties run in EP elections (see Table A.1.2).

In Table A.1.1 dates refer to election years with the indication of the first and last elections contested by each party and in which the party received at least 1 per cent of votes nationwide. Periods between the first and last elections during which a party did not exist or did not reach the 1 per cent threshold for inclusion in the analysis are not reported. Party families are listed alphabetically. Czech Republic as Czechoslovakia from World War I until separation. As far as European elections are concerned, parties that participate exclusively in elections to the EP (i.e. do not appear in figures for national elections) are listed in Table A.1.2.

Introduction

Toward the middle of the 19th century parliamentary representative institutions began replacing absolute regimes throughout Europe in the wake of the democratic revolutions that spread across the continent in successive waves. Albeit at different moments and paces – and often with reversals – competitive elections became the means by which representation in newly created parliaments was organized, executive power held accountable, and increasingly large segments of society incorporated in the political sphere through the right to vote.

Classical accounts of the formation of political parties as the main organizations and actors in the new “invention” of representative democracy (Manin, 1997), and party systems, that is sets of cooperating and competing parties, have described their rapid development across Europe in the 19th and early 20th centuries. Duverger's analysis (1954) pointed to the difference between parties of “internal” and “external” origin; the former, liberals and conservatives, based on the mobilization of elites within parliaments under conditions of restricted suffrage and majoritarian elections; the latter, socialists and agrarians, based on the mobilization of the masses incorporated later through the extension of the franchise. The cleavage model presented in Chapter 2 pointed to the socio-economic and cultural origin of party families as they emerged from fundamental conflicts created by the disruption of the old political and social order through the National and Industrial Revolutions.

Long-term historical analyses of democratic and electoral development in Europe – be it democratization and enfranchisement, the birth of party competition and partisan oppositions, or systemic properties such as volatility and nationalization – are characterized by two, in part contrasting, features. On one hand, these accounts point to commonalities, similarities, and simultaneous patterns of change over time. On the other hand, they point to variations and differences across European countries and to country-specific deviations from the general pattern. The analysis in Part II of this volume addresses the question of the balance between these two tendencies from an empirical and quantitative perspective using a variety of indicators tailored to capture the multi-dimensionality of the concept of Europeanization as specified in Chapter 1.