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2. The International Law Background
Before reviewing in more detail the provisions of international and regional human rights instruments relating to elections, two preliminary issues call for comment: First, the nature of the international obligations involved; and secondly, the relationship of international election norms to the principles of self-determination and sovereignty.
2.1. International Obligations
The individual's right to take part in government, either directly of through freely chosen representatives, and the principle that the will of the people shall be expressed in periodic and genuine elections, reflect what are called `obligations of result'.7 States undertake to achieve a specific result, but enjoy substantial choice of means in determining which path they will follow to reach the internationally required objective. Whether a State has fulfilled an obligation of result depends on the means chosen for implementation, but also on what actually happens in practice; hence the critical importance of election monitoring. The standard of achievement remains an international one, however, while the choice of means in the electoral field is significantly structured by the specific reference in the key human rights instruments to underlying principles of non-discrimination, universal and equal suffrage and secret ballot.
2.2. Self-determination and National Sovereignty
The modem concept of self-determination established itself firmly in the anti-colonialist practice of the United Nations. The UN Charter, for example, declares the basic objectives of the trusteeship system to include promoting the progressive development of the inhabitants of the trust territories `towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the people concerned.'8 Today, a number of commentators see the principle of self-determination as having both an external and an internal aspect. Cassese has thus described `internal' or `political self-determination' as meaning, among other matters, that a people in a sovereign State can elect and keep the government of its choice.9 He notes that the San Francisco Conference on International Organization in 1945 spoke of self-determination as reflecting the `free and genuine expression of the will of the people',10 but that the political context of such views was not broad enough at the time to include a claim to representative or democratic government
In later years, self-determination played a major part in the ball-game between `socialist' and `western' approaches to international relations, with emphasis in the UN falling then on colonialism and racist regimes. In due course, article 1 common to the 1966 Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, appeared to acknowledge a broader field of application for the principle:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The scope and terminology remain ambiguous, however. Did this provision apply only to the rapidly diminishing number of peoples under colonial rule? Or was it a statement of the entitlement of all peoples to determine their `collective political status' through democratic means?11
The 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States added a further wrinkle to the fabric, with its implicit conditioning of self-determination on possession of `a government representing the whole people...without distinction as to race, creed or colour.'12 Other references to the right of all peoples `freely to determine, without external interference,' their political status could nevertheless be interpreted restrictively, and as saying nothing about the conditions in which that will might be expressed. Although having a particular regional focus, the Final Act of the 1975 Helsinki Conference on Security and Co-operation in Europe offered a more encompassing approach, with its implicit linkage of self-determination to democratic choice:13
...all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference...
Cassese again considers it clear from the travaux preparatoires that this phrase represents the triumph of `the «Western» view, whereby the right of self-determination cannot be implemented if basic human rights and fundamental freedoms are not ensured to all members of the people concerned.' Thus, there can be no `real choice' under an authoritarian government, or in the absence of freedom from internal interference such as oppression. What the Helsinki Conference brought to the fore was the `anti-authoritarian, democratic thrust of self-determination.'14
Leaving aside the problematic disregard of the claims of minorities, the general argument can be supported by reference to Article 7 of the `Algiers Declaration on the Rights of Peoples,' adopted in 1976 by an ad hoc non-governmental conference, which proclaims the `right to have a democratic government representing all the citizens without distinction as to race, sex, belief or colour'.15 To the representative non-racist government would now be added a non-discriminatory, democratic and human rights-protecting dimension.16 In Cassese's words,17
internal political self-determination does not mean generic self-government, but rather (a) the right to choose freely a government, exercising all the freedoms which make the choice possible (freedom of speech, or association, etc.) and (b) the right that the government, once chosen, continues to enjoy the consensus of the people and is neither oppressive nor authoritarian.
Other commentators are more sanguine, particularly where the `rights of peoples' appear to be set against the rights of States at a certain normative level. Brownlie, for example, recognizes a `core of reasonable certainty' in the principle: `the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives'.18 He doubts, however, that States have accepted rules going beyond this point, particularly when practice and the level of obligation at inter-State level are reviewed.19 While accepting that self-determination is a right of `peoples', rather than governments, Crawford nevertheless considers it `axiomatic that international law does not guarantee representative, still less democratic governments'.20 On the other hand, `[t]o the extent that it applies, it qualifies the right of governments to dispose of the «peoples» in question in ways which conflict with their rights to self-determination.'21
The precise relationship of self-determination and `election rights' will remain controversial, so long as the connection is seen as likely to `internationalize' political opposition. Not surprisingly, a number of States use self-determination in self-defense against increasing international and United Nations activity in the election field. For example, allegations of irregularities in the 1986 Mexican elections were brought before the Inter-American Commission on Human Rights, claiming violation, among others, of the free exercise of political rights set forth in the 1969 Pact of San Jose. The Government of Mexico argued that the Commission had no jurisdiction to give a decision on electoral processes, for reasons of national sovereignty and the right of self-determination.22 The Commission disagreed, holding that by having signed and ratified the Convention, Mexico had consented to certain aspects of its internal jurisdiction being subject to judgment by organs set up to protect the rights recognized:
The IACHR is also empowered to verify, with respect to those rights, if the holding of periodic, authentic elections, with universal, equal, and secret suffrage takes place, within the framework of the necessary guarantees so that the results represent the popular will, including the possibility that the voters could, if necessary, effectively appeal against an electoral process that they consider fraudulent, defective and irregular or that ignores the `right to access, under general conditions of equality, to the public functions of the country.'
The objection of sovereignty nevertheless continues to be raised. United Nations General Assembly resolution 46/130, for example, on `Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes,' seeks to reaffirm that,23
it is the concern solely of peoples to determine methods and to establish institutions regarding the electoral process, as well as to determine the ways for its implementation according to their constitution and national legislation.
The same words were adopted in the equivalent resolutions for 1992 and 1993, save that the most recent version added the significant qualifier, `that, consequently, States should establish the necessary mechanisms and means to guarantee full popular participation in these processes.'24
The international `election rights' that are the subject of this paper are not new, however.25 They represent the developed content of rights already established, although it cannot be excluded that this process of consolidation will have novel consequences in other areas of international law and organization, such as sovereignty, legitimacy, membership and international representation. In its internal aspect, self-determination can be read as stating the same objective as is reflected in the principle of free and fair or genuine elections that the will of the people shall be the basis of the authority of government. In view of its ambiguous provenance, however, the principle of self-determination may best be left aside for the present, at least so far as it may permit a deductive argument for electoral rights. Rather, attention should be paid to those specific obligations in the matter of elections already assumed by States, and to the equally accepted political human rights that may reasonably be linked thereto. In the final analysis, to say that a nation enjoys or does not enjoy the right of self-determination may be no more than a validating or invalidating judgement on a complex process.
2.3. Elections and Human Rights Treaties
2.3.1. Universal instruments
Article 21 of the 1948 Universal Declaration of Human Rights, summarized above, sets out the basic premises for `election rights', which were later developed in article 25 of the 1966 Covenant on Civil and Political Rights:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take pan in the conduct of public affairs, directly or through freely chosen representatives;
(b) 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 expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Such a formal provision might be of little substantive impact, however, were it not for the `political and campaign rights' that are `critical to a meaningful election process.'26 Articles 19,21 and 22 are particularly relevant:
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others...
These political rights, coupled with the collective entitlement to free and fair elections, together offer a legal basis for a claim to representative government.
2.3.2. Regional instruments
The idea of popular government is common also to the African Charter on Human and Peoples' Rights,27 the American Convention on Human Rights,28 and the European Convention on Human Rights. The Preamble to the latter Convention reaffirms the `profound belief' of the contracting States, `in those Fundamental Freedoms which are the foundations of justice and peace in the world and are best maintained...by an effective political democracy'. Electoral rights did not figure in the body of the Convention, however, given substantial disagreement between the Consultative Assembly and the Committee of Ministers.29 A much watered-down provision eventually appeared in the First Protocol, article 3 of which declares what was clearly intended to be a limited inter-State obligation:
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
After a period of unadventurous jurisprudence in the European Commission, the European Court of Human Rights concluded in Mathieu-Morfin and Clerfayt that the words of the Preamble were in fact of prime importance, since they enshrined `a characteristic principle of democracy'.30 The Court further approved the progressive development in the thinking of the European Commission on Human Rights:31
From the idea of an `institutional' right to the holding of free elections...the Commission has moved to the concept of `universal suffrage'...and then, as a consequence, to the concept of subjective rights of participation - the `right to vote' and the `right to stand for election to the legislature'...
The failure to express an individual right can nevertheless have serious implications from the perspective of enforcement. The key elements in article 3 are the words `free', `reasonable intervals', `secret ballot', and `free expression of the people'. It does not therefore prescribe any particular form or system for elections,32 and does not exclude the freedom of States to qualify exercise of the right to vote or related freedoms, such as free expression of opinion under article 10 of the Convention,33 provided `the conditions do not curtail the rights in question to such an extent as to impair their very existence and deprive them of their effectiveness'.34
The European system had to work its way towards recognizing the individual rights dimension in the electoral context. The 1966 Covenant on Civil and Political Rights, the OAS Convention and, to a lesser extent, the African Charter, made that clear from the start. As is shown below, the general principles relating to State responsibility in regard to elections are widely reflected in the practice of States throughout the world, and have been integrated in the supervision, observation and monitoring activities of the United Nations and non-governmental organizations. What also emerges is a picture of how the principle of effectiveness of obligations provides the means to accommodate cultural, historical and political variations within a process that remains formally committed to the objective of `free and fair elections'.
2.4. United Nations Election Activities
UN human rights institutions are only now beginning to make progress in developing the political rights, but activities such as election monitoring and technical assistance at the field level are already contributing significantly to State practice, and thus also to the consolidation of norms and standards.
United Nations election activities can take a number of forms, ranging from the actual organization and conduct of elections, as in Cambodia, to the provision of technical assistance. The Comprehensive Settlement Agreement for Cambodia is an international agreement, which illustrates in broad strokes the minimum conditions considered by the international community as necessary for the conduct of free and fair elections. The goal of the civilian and military arrangements was, first, to establish a politically neutral and peaceful environment for elections to a constituent assembly, which in turn were a step towards the emergence of Cambodia as a country following 'a system of liberal democracy, on the basis of pluralism. It will provide for periodic and genuine elections... universal and equal suffrage... voting by secret ballot... [and] a full and fair opportunity to organize and participate in the electoral process.'35
The Agreement provided that the election was to be held on a provincial basis, in accordance with a system of proportional representation and party lists. All Cambodians aged eighteen, including Cambodian refugees and displaced persons, were entitled to take part and to vote. Political parties could be formed by any group of five thousand registered voters, but party platforms had to be consistent with the principles and objectives of the Agreement. Voting was to be by secret ballot, with provision made for the disabled and those who could not read or write. At the campaign level, it was provided that 'the freedoms of speech, assembly and movement will be fully respected. All registered political parties will enjoy fair access to the media, including the press, television and radio.'36 Further detail and practical guidance were provided in the Electoral Law and the Code of Conduct for Political Parties laid down by the United Nations. So far as the latter were the products of UN and individual expert contributions, their normative significance is nevertheless strengthened by their acceptance by Cambodia and in the international endorsement that followed the election and its results.37
The UN has also been engaged in supervision, for example, in Namibia, in a situation of decolonization in which all steps of the procedure, political and electoral, required 'certification'.38 This included assessing the impartiality of the electoral authorities, freedom of organization and expression for political parties, political party observers at various stages of the electoral process, and fair access to the media, among others.
At the request of the government of a sovereign State, the UN may undertake verification; the electoral process is managed by a national agency, and the UN is asked to 'verify' the freedom and fairness of specifically defined aspects, or at different stages. The Secretary General sent observers, for example, to monitor the work of the Supreme Electoral Council in Nicaragua in 1989, at the request of the government but also in the context of the Esquipulas II peace process.39 Amongst other matters, the parties involved undertook to adopt measures guaranteeing the participation of political parties in the electoral process, to ensure free access to means of communication and to protect freedom of association and expression.
More controversial, so far as no international or peace process was involved, was the UN verification mission to Haiti to monitor the elections of December 1990. Besides observing political rallies and the balloting procedure, the UN also provided technical assistance in the form of information and civic education;40 China, Cuba and Colombia opposed the UN's involvement in election monitoring in a sovereign State, arguing that it constituted a violation of article 2(7) of the UN Charter,41 and many States continue to insist that there is no 'universal need for the United Nations to provide electoral assistance'.42
Such a high degree of UN involvement requires a specific mandate from the General Assembly, and election organization, supervision and even verification remain exceptional activities. United Nations guidelines also emphasize that before becoming involved, there should be a clear international dimension,43 monitoring should cover the entire electoral process, geographical and chronological, from registration to election, there should be a specific request from the government and broad public support, and the electoral process should conform to the relevant principles of international human rights law, due account being taken of local customs and political practices.44 Less extensive UN involvement may include the provision of support for international observation, 'follow and report' by a UN representative on the spot,45 and the provision of electoral assistance, such as analysis, advice, equipment and training.46 A continuing role for the UN in the democratization process is nevertheless clearly called for in the 1993 Vienna Declaration and Programme of Action:47
Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing...The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.
2.4.1. Action in the UN General Assembly
In resolution 46/137, adopted on 18December 1991 by 134 votes in favour, 4 against48 and 13 abstentions, the UN General Assembly decided that the Secretary General should establish a focal point to ensure consistency in handling requests for electoral assistance, a post that was later to be assisted by the Electoral Assistance Unit, effective 1 April 1992.49 That resolution reiterated the language of the basic principles set out above: the right of everyone to take part in the government of their country, directly or through freely chosen representatives, the right of equal access to public service, that the will of the people is the basis of the authority of government, and that this will shall be expressed in periodic and genuine elections, by universal and equal suffrage held by secret vote. Such elections are 'a necessary and indispensable element of sustained efforts to protect the rights and interests of the governed'; and 'determining the will of the people requires an electoral process that provides an equal opportunity for all citizens to become candidates and put forward their political views, individually and in co-operation with others...'
At the same time, the General Assembly recognized that there is no single political system or electoral method equally suited to all nations. Moreover, the efforts of the international community,
to enhance the effectiveness of the principle of periodic and genuine elections should not call into question each State's sovereign right, in accordance with the will of its people, freely to choose and develop its political, social, economic and cultural systems, whether or not they conform to the preferences of other States
The 1992 and 1993 resolutions were both adopted without a contrary vote, each recognizing that 'the fundamental responsibility for ensuring free and fair elections lies with Governments'.50
Similar concerns have been reiterated in a series of 'parallel' resolutions, beginning with resolution 46/130 on 'Respect for the principles of national sovereignty and non-interference in the internal affairs of States in the electoral processes', adopted on 17 December 1991 by a vote of 102 in favour, 40 against and 13 abstentions;51 it emphasized that 'electoral processes are subject to historical, political, cultural and religious factors,' a point reaffirmed in 1992 and 1993.52
The extent to which United Nations electoral activities have contributed to the consolidation of international norms and standards is considered below. A review of such activities published in August 1993 recommended that before any UN involvement takes place, a preliminary needs assessment mission should look at and review, among other matters, the viability of the election system, the potential for electoral manipulation, the specific requests for assistance from the government, the attitude of opposition parties to the UN or others providing assistance or monitoring, and the long-term significance of a successful election. Failure to engage in such a preliminary review could increase the likelihood of the UN becoming involved in a flawed process.53 The General Assembly appears to agree; resolution 48/131 requests that the UN attempt 'to ensure, before undertaking to provide electoral assistance...that there is adequate time to organize and carry out an effective mission...that conditions exist to allow a free and fair election and that provisions can be made for adequate and comprehensive reporting of the results of the mission'. It also recommends that, 'in order to ensure the continuation and consolidation of the democratization process,' the UN should provide assistance both before and after elections.
2.5. The Inter-Parliamentary Union (IPU): Policy and Practice
The Inter-Parliamentary Union (IPU) has been the focus for worldwide parliamentary dialogue since its founding in 1889. Besides encouraging contacts among parliamentarians, the IPU also works to improve knowledge of representative institutions and to develop and strengthen their means of action. It collects and disseminates information, prepares comparative studies and provides technical assistance to Parliaments.
In a major study on Electoral Systems, published in 1993, the IPU set out its thinking on elections and the democratic process by emphasizing the necessity for a reasonable link between electors and elected in whichever system of balloting a State may choose, 'so as to avoid any possible divorce between the political class and the electorate.'54 As the IPU Secretary General stated in his foreword, 'However fair and regular an election may be, its political outcome is evidently determined by the electoral system that is applied.' In reviewing the practice of some 150 countries, the IPU found that elections are usually carried out by direct universal suffrage, in which every citizen can vote unless disqualified by law. Most countries impose limitations with respect to nationality, age, and residence; at the time of the study, two States denied the franchise to a major proportion of their population, namely, blacks and women. There is also considerable variation among States in their choice of electoral system. The majoritarian approach still predominates, although different methods of proportional representation, as well as mixed systems, increasingly are being adopted. If the objective is to ensure that the elected parliament should reflect representative political forces as closely as possible, then minorities and special interest groups may need special attention; some countries achieve this through constituency delimitation, or by providing for the designation of minority or group members.
In the context of its commitment to the development and strengthening of representative institutions, the IPU is increasingly engaged in election monitoring, both in its own right and indirectly through parliamentarian members.55 As part of its support to Parliaments, the 82nd Inter-Parliamentary Conference specifically endorsed the decision to send an IPU observer mission to 'verify the legality' of the elections in Namibia in 1989.56 Its mandate on that occasion was to ascertain that all Namibians entitled to vote were properly registered and the rolls not tampered with; to observe whether all those registered were able to vote freely and that their ballots were properly and fairly counted; and to enquire whether, during the campaign and the election itself information flowed freely to and from the people so as to ensure that they were able to vote under the best possible conditions.57
Four years later the Inter-Parliamentary Council decided similarly to send a delegation to Cambodia, to observe all relevant aspects of the organization and conduct of the elections scheduled for May 1993, and to report on its observations and findings as to whether they were carried out in conformity with the UN Electoral Law for Cambodia.58 The findings of both missions are incorporated in the body of the present study. As the IPU delegation to Cambodia emphasized, however, it is important not only that election observer missions witness the whole electoral process, including the campaign period, but also to recognize that 'elections are but part of a larger process which aims at ensuring participatory democracy.'59
At its April 1993 session in New Delhi, the Inter-Parliamentary Council unanimously endorsed the Union's policy and involvement in electoral processes. It welcomed co-operation with the United Nations, reaffirming 'that the Union should always seek to ensure that it is present at national elections and referenda which are organized, supervised or verified' by the UN.60 The Council further urged national groups to participate in election observer missions and to provide electoral assistance, while specifically welcoming plans to undertake the present study on free and fair elections.61
2.6. Regional and Other Developments
One of the most extensive and coherent statements of principle with respect to elections is found in the final document issued by the Conference on Security and Co-operation in Europe Meeting on the Human Dimension in Copenhagen in 1990.62 The participating States recognized that pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms. Among the 'elements of justice' essential to the full expression of the inherent dignity and of the equal and inalienable rights of all human beings are free elections held at reasonable intervals by secret ballot, government that is representative in character, in which the executive is accountable to the elected legislature or the electorate, and a clear separation between State and political parties. Section 7 of the Copenhagen Document is especially comprehensive, declaring that in order to ensure the will of the people serves as the basis of the authority of government, the participating States will,
- hold elections at reasonable intervals, as established by law;
- permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;
- guarantee universal and equal suffrage to adult citizens;
- ensure that votes are cast by secret ballot or by equivalent free voting procedure,63 and that they are counted and reported honestly with the official results made public;
- respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination;
- respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties or other organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;
- ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution;
- provide that no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process;
- ensure that candidates who obtain the necessary number of votes required by law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to any end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures.
States also accepted the potential of national and foreign observers in enhancing the electoral process, stressed the importance of related 'political rights', and the value of co-operation and information exchange.64 Although the CSCE process may fall short of the high normative character of an international treaty, co-operation has been the leitmotif of each meeting, the focus of which is increasingly detailed.65 The fact that fifty-six States now participate in the process, many of them both adapting their laws to democratic ends and inviting international observers to attend their elections,66 lends added weight to the standards emerging with respect to free and fair elections.
This conclusion is amply supported by the fact that similar 'normative' activities have also been undertaken by many other international actors in this field. Numerous election observation reports are quoted throughout this study, and the mainly non-governmental organizations responsible have contributed, at least indirectly, to clarifying norms through their recorded experience and recommendations. Inter-governmental organizations have also significantly increased their election-related activities. For its part, the Organization of American States adopted the 'agreement of Santiago on democracy and the renovation of the Inter-American System' in 1991, in which it declared its determination to 'strengthen representative democracy as the expression of the legitimate and free manifestation of popular will, in strict respect of the sovereignty and independence of its member States'.67 This was followed by the establishment of an OAS Unit for the Promotion of Democracy and enhanced involvement in electoral assistance and observation.
Also in 1991, the Commonwealth adopted the Harare Declaration which gave high priority to the organization's promotion of its fundamental political values, defined as 'democracy, democratic processes and institutions which reflect national circumstances, human rights, the rule of law, and just and honest government'.68 The Declaration has been followed by extensive activities for assisting and observing electoral processes. The Organization of African Unity has provided such assistance, observing, for example, the 1992 elections in Zambia. Most recently, and together with the Commonwealth and the European Union, the OAU has co-operated with the United Nations in observing the 1994 elections in South Africa.
7 For further discussion see, Goodwin-Gill, G.S., `Obligations of Conduct and Result,' in P. Alston and K. Tomasevski, eds., The Right to Food, (1985), 111-8.
8 An. 76(b), UN Charter.
9 Cassese, A., `Political Self-Determination-Old Concepts and New Developments,' in Cassese, A., ed., UN Law/Fundamental Rights. (1979), 137-65.
10 See sources cited ibid., 138-9
11 Franck, T.M., `The Emerging Right to Democratic Governance,' 86 AJIL 46, 58-9 (1992) (hereafter. Franck. `Democratic Governance').
12 UNGA res. 2625(XXV), 24 Oct. 1970, Annex, Principle (e); Cassese, above note 3, at 143.
13 Helsinki Conference on Security and Co-operation in Europe, 1975, Principle VIII; text in 1975 Digest of United Stales Practice in International Law, pp. 8, 10.
14 Cassese, above note 3, 152-3.
15 Text in Cassese. A. and Jouve, E., eds., Pour un droit des peuples: Essais sur la Declaration d'Alger, (1978), 27-30. An. 7: `Tout peuple a droit a un regime democratique representant 1'ensemble des citoyens, sans distinction de race, de sexe, de croyance ou de couleur et capable d'assurer le respect effectif des droits de I'homme et des libertes fondamentales pour tous.' (emphasis supplied).
16 Cf. Gaja, G., `L'autodetermination politique dans la Declaration d'Alger: objectifs et realites,' in Cassese, A. & Jouve, E.., eds, Pour un droit des peuples, (1978). 124: `Dans la mesure ou un droit est veritablement attribue au peuple ...1'existence d'un regime democratique doit egalement etre consideree comme necessaire pour que le gouvemement puisse exercer le droit appartenant au peuple. En d'autre termes. Ie peuple n'est represente par le gouvemement que si le regime a un caractere democratique.'
17 Cassese, `Self-Determination.' above note 3. 154. See also Cassese, A., `The Self-Determination of Peoples,' in Henkin. L., ed., The International Bill of Rights-The International Covenant on Civil and Political Rights, (1981), 92-113, at 97; Steiner, H.J., `Political Participation as a Human Right,' 1 Harv. HRY 77-134 (1988).
18 Brownlie, I., `The Rights of Peoples in Modern International Law,' in Crawford, J., ed., The Rights of Peoples, (1988), 1, at 5.
19 Ibid., at 12.
20 Crawford, J., `The Rights of Peoples: «Peoples» or «Governments»?' in Crawford, J., ed., The Rights of Peoples. (1988), 55.
21 Ibid., at 59.
22 Final Report on Cases 9768, 9780 et 9828: IACmHR 97, OEA/Ser. L/V/II, doc. 7, rev. 1 (1990); Buergenthal, T. and Norris, R.E., eds, Human Rights: The Inler-American System, Pt. 3, Cases and Decisions, (1993), 97.
23 UNGA res. 46/130, 17 Dec. 1991, adopted by 102 votes in favour, 40 against, with 13 abstentions. See further below, section 2.4.
24 See UNGA res. 48/124, 20 Dec. 1993, para. 2, adopted by 101 votes in favour, 51 against and 17 abstentions; cf. UNGA res. 47/130, 18 Dec. 1992, adopted by 99 votes in favour, 45 against, with 16 abstentions.
25 Consequently they should not fall foul of Brownlie's strictures (`a part of the proliferation of academic inventions of new human rights and the launching of new normative candidates by anyone who can find an audience': `The Rights of Peoples,' above note 12, at 12). Also Alston, P., `Conjuring up New Human Rights: A Proposal for Quality Control,' 78 AJIL 607 (1984).
26 Larry Garber and dark Gibson. Review of United Nations Electoral Assistance 1992-93, (Aug. 1993) (hereafter Garber & Gibson, Electoral Assistance), 58; cf. Franck, `Democratic Governance,' at 61: `the essential preconditions for an open electoral process'.
27 Art. 13: 1. `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. 2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.'
28 Art. 23: Right to Participate in Government: `1. 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; and (c) to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age. nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.' Art. 5 of the Charter of the Organization of American States declares the duty of members to promote the effective exercise of representative democracy; this has been reaffirmed in subsequent resolutions and also used as the basis for criticism of members considered to be in breach. See Franck. `Democratic Governance.' 65-6.
29 See Goy, R., `La garantie europeenne du droit a de libres elections 1egislatives: 1'article 3 du premier protocole additionel a la Convention de Rome,' 5 Revue de droit public 1275 (1985), (hereafter, Goy, `La garantie europeenne du droit a de libres elections legislatives'), for a fascinating and illuminating account of debates within the Consultative Assembly, the Committee of Ministers and related committees.
30 Ser. A, No. 113, para. 47. See also J.G. Merrills, The Development of International Law by the European Court of Human Rights, (1988), 115-35; J.E.S. Fawcett, The Application of the European Convention on Human Rights. (2nd ed., 1987), 416-8.
31 Ser. A, No. 113, para. 51; see also Goy, `La garantie europeenne du droit a de libres e1ections legislatives', 1311, 1314.
32 Although the principle of equality of treatment necessarily applies to Protocol 1, art. 3, the European Court considered that this does not imply `that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate «wasted votes».' The Court also emphasized the relevance of context: `any electoral system must be assessed in the light of the political evolution of the country concerned...features that would be unacceptable in the context of one system may accordingly be justified in the context of another..': ibid., para. 54. During drafting, both the United Kingdom and Belgian delegates were concerned to protect non-representative institutions in their parliaments, namely, the hereditary House of Lords and a nominated Senate. The European Commission has also observed that at the time of drafting, both majoritarian and proportional representation systems were part of the `common heritage of political traditions' referred to in the Preamble; see Application 7140/75, X v. United Kingdom: 7 Decisions and Reports 95; Application 8765/79, Liberal Party v. United Kingdom: 21 Decisions and Reports 211.
33 In the Handyside case, the European Court referred to the `demands of pluralism, tolerance and broadmindedness without which there is no «democratic society». This means...that every «formality», «condition», «restriction» or «penalty» imposed [in the sphere of art. 10] must be proportionate to the legitimate aim pursued': Ser. A., No. 24, para. 49. See also the Lingens case: Ser. A, No. 103; the freedom of the press is not just about conveying information, but also extends to comment and criticism of politicians; Oberschlick v. Austria,Case No. 6/1990/197/257, European Court of Human Rights, 23 May 1991.
34 Ibid., para. 52, emphasis added. Strictly speaking, in its earlier interpretations, art. 3 did not guarantee a right to vote. In Application 1065/61:4 Yearbook 268, Belgian citizens resident in the Congo complained that they were denied participation in elections in Belgium. The Commission found their claim incompatible with the Convention, since the right to vote was not as such guaranteed: `the Contracting States may...exclude certain categories of citizen, such...as overseas residents, from the vote, provided such exclusion does not prevent the free expression of the opinion of the people in the choice of the legislature.' Such limitations, however, must also be consistent with other provisions of the Convention. The way was thus open and in 1975, on applications from Belgium and the United Kingdom, the European Commission revised its approach, to hold that art. 3 did in fact give rise to an individual right to vote or to offer oneself as a candidate, which was necessarily implied by recognition of the principle of universal suffrage: see citations in Goy, `La garantie europeenne du droit a de libres elections legislatives', 1314.
35 For text of the Comprehensive Settlement Agreement, see 31 Int. Leg. Mat. 180 (1992).
36 Comprehensive Settlement Agreement, Elections Annex (Annex 3): ibid.
37 See IPU, 'Report of IPU Election Observer Mission. Cambodia, 16 May 4 June 1993,' Geneva, (1993); Bulletin de 1'Assemblee Nationale, (Paris), no. 7 du 8 juin 1993, 44.
38 See UN/UNDP: Guidelines on Special Arrangements for Electoral Assistance, (Aug. 1992); also Report of the Secretary General: UN doc. A/46/609, 19 Nov. 1991.
39 See Council of Freely Elected Heads of Government. Observing Nicaragua's Elections, 1989-1990: Garber and Gibson, Electoral Assistance, 19. The General Assembly approved the mission in UNGA res. 44/10, the first time the UN had monitored an election in a Member Slate; see also United Nations, Establishment and Terms of Reference of the United Nations Observer Mission to Verify the Electoral Process in Nicaragua (ONUVEN): UN doc. A/44/375 (1989).
40 Garber & Gibson, Electoral Assistance, 19; Franck, 'Democratic Governance,' 72-4.
41 Franck rejects this argument, citing the opinion of the International Court of Justice on the issue of commitments binding a nation to electoral standards. The Court said that it could not 'discover, within the range of subjects open to international agreement, any obstacle or provision to hinder a State from making a commitment of this kind. A State, which is free to decide upon the principle and methods of popular consultation within its domestic order, is sovereign for the purpose of accepting a limitation of its sovereignty in this field. This is a conceivable situation for a State which is bound by institutional links to a confederation of States, or indeed to an international organization.' Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 ICJ Reports 14, 141; cited in Franck, 'Democratic Governance,' at 81.
42 See, for example, UNGA res. 48/124, 20 Dec. 1993, para. 4.
43 Report of the Secretary-General. Enhancing the effectiveness of the principle of periodic and genuine elections: UN doc. A/46/609, 19 Nov. 1991, paras. 58, 79.
44 See UN/UNDP: Guidelines on Special Arrangements for Electoral Assistance, (Aug. 1992); Guidelines for Member Slates Considering the Formulation of a Request for Electoral Assistance, n.d.
45 'Follow and report' was initially employed where there was a perceived need for a United Nations presence, but insufficient lead time for a full operation. The UNDP Resident Representative was generally requested by the Secretary-General to assume 'follow and report' responsibilities. A recent review of UN election assistance activities has recommended that the practice be abandoned: Garber & Gibson, Electoral Assistance, 58.
46 The UN Centre for Human Rights, for example, provided analytical reports following missions to Albania in 1990, Romania in 1990 and 1992, Lesotho in 1991, and Malawi in 1993. In 1994, the Centre scheduled for publication a handbook on the legal, technical and human rights aspects of elections.
47 UN doc. A/CONF. 157/23, paras. 8, 23.
48 Those voting against were Cuba, the Democratic People's Republic of Korea, Kenya and Namibia. Namibia later advised that it had intended to vote in favour. Already in 1988, in res. 43/157, 'Enhancing the effectiveness of the principle of periodic and genuine elections,' the General Assembly had invited the Commission on Human Rights to report on how the UN might support electoral processes while respecting the sovereignty of States.
49 See Report of the Secretary-General, Enhancing the effectiveness of the principle of periodic and genuine elections: UN doc. A/47/668, 18 Nov, 1992, paras. 9-12 on the role of the Unit.
50 UNGA res. 47/138, 18 Dec. 1992 (Kenya joined those in favour); UNGA res. 48/131, 20 Dec. 1993 (Namibia joined those in favour).
51 Some of the concerns of States in favour of res. 46/130 are evident from operative para. 6, which 'Strongly appeals to all States to refrain from financing or providing, directly or indirectly, any other form of overt or covert support for political parties or groups and from taking actions to undermine the electoral processes in any country.'
52 See UNGA res. 48/124, 20 Dec. 1993; UNGA res. 47/130, 18 Dec. 1992.
53 Garber & Gibson, Electoral Assistance, 58ff.
54 Inter-Parliamentary Union, Electoral Systems: A World-Wide Comparative Survey, Geneva, (1993). 3
55 Note that it was parliamentarians in the European Consultative Assembly who pushed for the inclusion of electoral rights in the European Convention on Human Rights; see Goy, 'La garantie europeenne du droit a de libres elections legislatives', 1278-90.
56 See Resolution on Support of Parliaments to the Process of Independence in Namibia, the Holding of Free and Equitable General Elections, and the Establishment of a New Government reflecting the Popular Will, adopted by the 82nd Inter-Parliamentary Conference, Sept. 1989. Annexed to 'Report of the Mission to Observe the Elections in Namibia': IPU doc. CL/146/10-R.1, 20 Dec. 1989.
57 IPU, 'Report of the Mission to Observe the Elections in Namibia,' para. 21.
58 IPU, `Report of IPU Election Observer Mission, Cambodia, 16 May-4 June 1993,' Geneva, (1993).
59 Ibid., paras. 61, 65.
60 'IPU's Policy and Involvement in Electoral Processes,' Resolution adopted unanimously by the Inter-Parliamentarv Council at its 152nd Session, New Delhi, 17 Apr. 1993, paras. 1, 2.
61 Ibid., paras. 7, 8, 10.
62 CSCE: Document of the Copenhagen Meeting of the Conference on the Human Dimension: 29 June 1990: 29 I.L.M. 1305 (1990).
63 The reason for this throwback to the Universal Declaration of Human Rights is not at all clear.
64 Ibid., sections 8, 9, 22.
65 Principle IX of the Declaration on Principles Guiding Relations between Participating States, Helsinki Final Act, 1 Aug. 1975, declared: `The participating States will develop their co-operation with one another and with all Slates in all fields in accordance with the purposes and principles of the United Nations...' Text in 1975 Digest of United Slates Practice in International Law, pp. 8, 10.
66 Some 1,000 international observers are estimated to have attended the 12Dec. 1993 elections in Russia: US Commission on Security and Cooperation in Europe. Russia's Parliamentary Election and Constitutional Referendum, December 12, 1993. Washington, D.C. (Jan. 1994), 13.
67 Resolution adopted at its third plenary session on 4 June 1991.
68 The Harare Commonwealth Declaration, October 1991.
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