#International Day of Democracy: The impact of memory laws on democracy

Today is the United Nations’ International Day of Democracy, a day that celebrates and promotes the principles of democracy worldwide. In 2007, the United Nations General Assembly passed a resolution that encouraged organisations and member states to strengthen and consolidate the democratic process. On this occasion, we interviewed the Memory Laws in European and Comparative Perspective (MELA) project team to dive into what memory laws mean, and get a better understanding of how memory governance can shape the democratic scene in a state.

Interview with Dr Uladzislau Belavusau (Senior Researcher in European Law at the Institute and the Principal Investigator for the MELA project), Dr León Castellanos-Jankiewicz (Postdoctoral Researcher for the MELA project) and Marina Bán (PhD candidate currently completing her dissertation about memory laws and the rule of law).

What are memory governance and memory laws?

Memory governance is everything that has to do with the state intervening in regulating how we remember important events in the past. This refers to state-based interpretations of important historical events. It usually translates into memory laws, which prevent the denial of certain facts such as the Holocaust. Memory laws are a tool the state uses to decide what history looks like – for example through the shaping of the history curriculum, the establishment of museums, monuments and the commemoration of historical events and figures. With that understanding, memory laws can have either a positive or a negative effect of democracy.

How can memory laws limit or encourage democratic participation? Are there similarities and differences in the different regions of Europe?

Memory laws can foster both encouragement and limitation of participation. On the one hand, in terms of encouragement, recognition laws may provide support to victim communities and help validate their experience in the eyes of the majority – for example, the official recognition of the Armenian genocide can be a sign from the state that the voices of Armenian communities are not ignored. 

On the other hand, imposing limitations via memory laws is just as easy – especially with the introduction of criminal sanctions on freedom of expression. Scholars heavily debate these memory laws. For example, some argue that prohibitions on genocide denialism pose necessary limitations because such speech is unacceptable in a democratic society. Whereas memory laws directed towards banning insult or defamation of a nation are more widely condemned as they are considered a tool to impose narratives and impair independent research and discussion.

In terms of European practices, these examples pop up regardless of the location of the country on the continent. In France, for example, the debate is constant around the recognition of atrocities through the law, like the Armenian genocide and the slave trade. Recently, Germany and the Netherlands had their own debates on the recognition of the Armenian genocide as well. Regarding criminal sanctions, prohibitions on genocide denialism is a widespread practice in Europe, and it is partly supported by the EU and the European Court of Human Rights – not every single such law is endorsed by the European institutions but many of them are. The insult-related criminal prohibitions appeared more extensively in Eastern-Europe for now.

How can minorities be a part of (or not) the narrative creation, and how can they challenge existing inaccurate narratives?

The exclusion of minorities can be exacerbated by the restriction of pluralist debates around historical events. It is important that everyone has a voice in narrative creation because exclusion via memory laws gives states an opportunity to take control over historical narratives and, as mentioned earlier, even use them to impose limits on democratic freedoms.

Should the state intervene in historical narratives – by imposing laws on monuments, the teaching of history, and speech? Or is it enough to encourage the debate and let people decide?

State intervention in historical narratives by imposing laws cannot be completely eradicated. Nor should it be because there are memory laws necessary for the encouragement of participation and democratic pluralism – like the recognition laws mentioned earlier. However, while intervention via law is unavoidable, the state should try to restrict its presence in this area. States ideally should avoid criminal sanctions and remove themselves, whenever it is possible, from overregulating how historical events are taught and commemorated. States can rely on consultations with citizens and expert opinions on the conception and formulation of new memory laws, in order to avoid this problem.

Is the lack of participation in memory governance a sign of democracy deterioration? Are memory laws considered in the assessment of democracy deterioration? If not, should they be?

Yes, it can absolutely be a sign of democracy deterioration. For example, if a state has memory laws containing criminal sanctions – especially if they are aimed at the banning insult of the nation – then these can be used to silence independent voices by threatening livelihoods, and they can contribute to the shrinking space for public debate. Such lack of pluralist discussion on historical events is a sign of a deteriorating democracy because it shows how a state intends to exercise control over historical memory and exclude undesirable narratives. Of course, not all memory laws mean automatically that there is a democratic backsliding happening in the state, but they can be warning signs. Therefore, there should be more consideration given to how a state treats its historical memory by using laws. Especially during the assessment by European institutions on the possibility of democratic backsliding. 

To what extent does European law pose limits on States that choose official historical narratives? Are there certain rules States should adhere to?

The general rules in European law regarding memory laws stress adherence to freedom of expression. Although neither the Council of Europe nor the EU regard freedom of speech as an absolute human right, posing restrictions on states involves a careful balance of its opposing justified limits, such as the protection of public order, security, and morality. For example, the denial of an internationally recognised genocide is not protected by freedom of speech. The European Court of Human Rights indicates that introducing criminal punishment for Holocaust denialism is up to Member States. However, the court does not foster a universal prohibition of genocide denialism beyond the Holocaust, leaving a twilight zone regarding in particular, the Armenian genocide.

Furthermore, there is nothing in European law that would preclude Member States from adopting memory laws, but the EU and the Council of Europe expect states to keep their legal provisions and judicial narratives accountable to rule of law principles. They are obligated to consider the rights and safety of minorities, freedom of academic assembly and dignity as well.

Do you have recommendations on how to implement legislation in line with human rights and the rule of law when it comes to renaming streets?

Based on European and comparative law, there are a number of good practices and recommendations that should be considered by the states in the process of adopting memory laws regarding the re-naming of streets.

It is inadvisable to change street names to honour people whose contribution and role in history has not yet been assessed by professional historians, or remains a matter of current political debate. While democracy is built on both consensus and dissensus, there is no pressing need to endanger it by provoking more disagreements within local communities and the entire society.

Further reading
Street Renaming after the Change of Political Regime: Legal and Policy Recommendations from Human Rights Perspectives
Renaming streets. A key element of identity politics
Rule of Law in Poland: Memory Politics and Belarusian Minority
Memory Wars of Commercial Worth – The Legal Status of the Red Star in Hungary
The Role of Law in Historical Memory
Legal Regulation of Historical Memory Remains a Vivid Reality
Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice

About the MELA project
The MELA project is a four-nation, EU-sponsored consortium gathered to examine memory laws throughout Europe and the world, exploring their history, their recent developments and their connections to democratic values such as human rights and the rule of law. The three-year project received a grant of over € 1.2 million by Humanities in the European Research Area (HERA) to conduct research on memory from September 2016 until August 2019. The consortium included four teams, respectively at the Queen Mary University London, Bologna University, Polish Academy of Sciences and at the Asser Institute.

Read more about the past and future activities of MELA Project – Dutch team here.