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Electoral Rights: international law and practice

Electoral Rights: international law and practice

International law

The Universal Declaration of Human Rights (1948) states that: 'Everyone has the right to take part in the government of his country, directly or through freely chosen representatives … The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures' (GA res. 217A(III), UN Doc A/810 at 71 (1948), available at http://www1.umn.edu/humanrts/instree/b1udhr.htm). Although the Universal Declaration of Human Rights is not a binding treaty, it is nearly universally accepted and compliance carries considerable political weight.

The United Nations' International Covenant on Civil and Political Rights (of 1966, coming into force in 1976) in Article 25 states that: 'Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: To take part in the conduct of public affairs, directly or through freely chosen representatives; To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free will of the electors …'

Article 2 prohibits governments from discrimination (GA res. 2200A(XXI), 21 UN GAOR supp. (no 16) at 49, http://www1.umn.edu/humanrts/instree/b2sec.htm). The Participatory Elections Project (PEP) comments that 'The 'non-discrimination' principle is a central feature of almost all recent human rights instruments, including those related to electoral participation. The core idea is that all rights are to be equally enjoyed by each segment of a state's population.'

Various regional human rights instruments also require democratic entitlement:

The American Convention on Human Rights (1969, Article 23, states that: 'Every citizen shall enjoy the following rights and opportunities: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters…' (see http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm).

This commitment to democracy is reinforced by statements by the Inter-American Commission on Human Rights. The Organization of American States (OAS) General Assembly resolution 510 declares democracy to be the basis of a just human society, and resolution 1080 (1991) adopts mechanisms for the OAS for upholding and defending democratic practice. The Inter-American Democratic Charter of 2001 declares in Article 1 that 'The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.'

In Europe the First Protocol to the European Convention on Human Rights states that 'the High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of the legislature' ( http://www.hri.org/docs/ECHR50.html). This binding legislation has produced case law at the European Court of Human Rights and the European Commission on Human Rights that upholds not only the right to free elections but also the guaranteed right to universal and equal suffrage. (Mathieu-Mohin and Clayfert v. Belgium, 2 March 1987, Series A, no. 113). See the Council of Europe's website ( http://www.coe.int) for treaties and case law.

In Africa, the African (Banjul) charter on Human and Peoples' Rights (1981) requires that 'Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law' (OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, 1982).

Thus there is extensive legal promotion and protection of citizens' right to participate democratically in the governance of their country. Consequently, it is argued that citizens have a 'democratic entitlement', and that this requires effective practices and standards to ensure that elections and governance do actually reflect the will of the people. (See Fox 2000.)

International organizations' practice

Declarations and work programmes of the UN and other international governmental organizations (IGOs) show an increasing prioritization of the promotion of democracy. These include democratization and electoral assistance components in peacekeeping missions, and commitments to multilateral intervention into the internal affairs of states in support of democracy.

Examples of the UN's promotion of democracy include providing technical and financial assistance, and implementing and monitoring elections. This work is coordinated and supported by the UN's Electoral Assistance Division ( http://www.un.org/Depts/dpa/ead/eadhome.htm). (See UN General Assembly 1992.)

On a regional level, the Organization of American States (OAS) includes democracy promotion as one of its fundamental goals and in 1990 established a Unit for the Promotion of Democracy, which provides member states with technical support and advice, and observes elections. In 1991, resolution 1080 was adopted, which provides for emergency sessions of the hemisphere's foreign ministers when any democracy in the region is interrupted. ( http://www.oas.org/assembly2001/assembly/GAassembly200/resolucion1080.htm)

In Europe the Organization for Security and Cooperation in Europe (OSCE), in particular through its Office for Democratic Institutions and Human Rights (ODIHR), has been a leading force in promoting democracy in the former Eastern European countries. This has ranged from technical support to conducting elections, and observation of the election process. Since 1991, ODIHR has observed over 110 elections in the OSCE region, deploying in the process more than 10,000 international observers. Electoral functioning is regarded as critical in creating a political environment that protects human rights (see the 1990 Copenhagen Document, http://www.osce.org/docs/english/1990-1999/cope90e.htm). Other European organizations involved in technical assistance and election monitoring include the Council of Europe and the European Union.

The Organization of African Unity (OAU), now renamed the African Union, has also been increasing its role in promoting and protecting democracy. The organization sends observer missions, and has sanctions that can be invoked in the event of an interruption of constitutional rule.

In addition to IGOs there are numerous non-governmental organizations involved in supporting and developing democracy - see the bibliography for further information.

Thus there are a plethora of international agreements and international governmental organizations involved in protecting and promoting democratic rights. This has resulted in practical assistance and financial support being available, as well as inindependent observer missions. There are also negative international consequences if democratic rights are not upheld (e.g., exclusion from agreements and organizations, denial of visas, and commercial restrictions). The question arises as to whether a state's failure to provide for its people's 'democratic entitlement' should result in international intervention into the state's internal affairs.

Bibliography
Brownlie, Ian and Goodwin-Gill, Guy S. (eds), Basic Documents on Human Rights, 4th edn. Oxford: Oxford University Press, 2002.
Fox, Gregory H., 'The Right to Political Participation in International Law'. In Fox, Gregory H. and Roth, Bread R. (eds), Democratic Governance and International Law. Cambridge: Cambridge University Press, 2000.
OSCE/ODIHR, International Standards and Commitments on the Right to Democratic Elections: A Practical Reference Guide to Democratic Elections Best Practice. OSCE/ODIHR Draft Paper, 20 November 2002. ( http://www.osce.org/odihr/documents/elections/intstand_draft.pdf)
Participatory Elections Project (PEP), The PEP Research Package, Section 1 ( http://www.iom.int/pep/news_introduction.pdf)
UN General Assembly, Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections. 9 March 1992). http://www.un.org/Depts/dpa/ead/2res92.htm.
Websites
Association of Central and Eastern European Election Officials (lists conventions and declarations concerning election management) http://www.aceeeo.org/projects/standards.html
Last updated Aug 17, 2011