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1. Introduction And Objectives
The ideal of democracy and the right of everyone to participate in the government of his or her country are clearly set out in article 21 of the 1948 Universal Declaration of Human Rights. Specifically, the provision in article 21(3) that `the will of the people shall be the basis of the authority of government' stands as a straightforward statement of the principle of representative democracy, which is now increasingly seen as essential to the legitimation of governments among the community of States. Existing universal and regional human rights instruments, however, provide little detailed guidance of key issues, such as the periodicity of elections, the organization and entitlements of political parties, voter rights and registration, or the conduct of the ballot. That elections should allow expression of the `will of the people' may offer a standard of effectiveness, but the ways and means by which progress towards that standards can be measured remain variable.
Political rights, such as the freedom to hold opinions, and to meet and exchange ideas and information, are central to the consolidation of democratic government and the rule of law. International instructions, however, such as the UN Commission of Human Rights and regional supervisory organizations, have done relatively little to develop either the conceptual foundations of these rights, or the practical application of the rights of participation. At the same time, the active involvement of the United Nations, the Inter-Parliamentary Union and a variety of inter-governmental and non-governmental organizations in election monitoring and technical assistance at the field level, is even now producing a body of practice that is contributing to the consolidation of norms and practices.
Still, there is a pressing need for clear criteria by which to judge whether elections are free and fair. In part, this will serve the interests of election monitors by enabling them to move beyond overly simplified gestures of approval or condemnation; but more importantly, such criteria are likely to increase national and international confidence in the electoral process, by reducing the necessity for challenge limiting the possibilities for the arbitrary rejection of election results, and facilitating the transfer of power.
Terms like `periodic', `free', `fair', and `genuine', have no easily verifiable content, often being used subjectively, in an appeal to those assumed to share basic values and outlooks. In practice, it may be easier to identify what is not a free, fair or genuine election, by focusing on evidence of overt external influence, the lack of meaningful choice in single candidate and single party systems, or terrorization of the electorate.
The objective of this study, however, is to get beyond presumptive or subjective assessments, to present a catalogue that is inductive, rather than deductive, and as capable of objective application as possible. The aim is thus to show what international law requires, drawing on existing rules and standards, but with special concentration also on the practice of States, including a selective and illustrative comparison of recent electoral laws and practices. In addition, the experiences of a number of observer and technical assistance missions to States in transition to representative democracy are considered, including the `new' activities which the United Nations is now pursuing through the Electoral Assistance Unit established in 1992. The impact of these potentially norm-creating activities is also examined in the light of State sovereignty claims and concerns, bearing in mind article 2(7) of the UN Charter.1 ' The ultimate question is whether any consensus exists on common standards, and how relevant are the variations or deviations, considered from an international law perspective.
One advantage of an international approach that draws upon comparative experience lies in its capacity to integrate variations in historical and cultural circumstance, and to accommodate different ways of determining what it is that the people choose. At the same time, international law's scheme of basic rules provides a number of organizing principles around which to assess, for example, the `validity' of national legislation and practice, considered in terms of their contribution to the effective implementation of international obligations.
What is often forgotten is how recent are many of the electoral rights now taken for granted. `Universal suffrage', which is rarely universal in practice, is a creature of the twentieth century. Only with the 1918 Representation of the People Act in the United Kingdom, for example, did most men over twenty-one obtain the vote, together then with women over thirty, who were not treated equally with male electors in regard to age until 1928; in Switzerland, many women went on waiting for the vote until 1991. Another recent candidate for universal application is the secret ballot; in 1948, the Universal Declaration of Human Rights also contemplated `equivalent free voting procedures', a phrase not found in article 25 of the 1966 Covenant on Civil and Political Rights.2 Similarly, the current emphasis on voter registration and the prohibition of `gerrymandering'3 were accepted only belatedly in some of the so-called established democracies, including Northern Ireland and the southern United States.
Changes happen fast, however. In 1989, for the first time a revolutionary government that had come to power after a protracted armed struggle `voluntarily' ceded power to the victor in an internationally monitored election.4 In other regions, the process of democratization is gathering momentum, although in many cases it may be some time before the people find faith in the new institutions.
1.1. Outline of the Study
This study aims to present the international law dimensions to the criteria and conditions for the conduct of free and fair elections, showing what States have assumed in the way of obligation, and what may be required to ensure that such obligations are effectively implemented. The primary focus is on elections for legislative bodies, and only incidentally on presidential elections and referenda. Also, the study does not deal in detail with the choice of electoral system, that is, with the relative merits of majoritarian and proportional representation schemes. Although that choice bears directly on the 'value' of the vote and on the character of the legislature, it has for long been considered to fall exclusively within the realm of domestic jurisdiction. In other cases, the study does try to identify the acceptable range of variation in this area which is so clearly dominated by historical, cultural, political and social factors, and so close to the essential idea of the State as sovereign entity.
The study is divided into four principal sections. Following the present Introduction, Section 2 examines the international law background to the concept of free and fair elections, the relevance of the principle of self-determination, and the treatment accorded the subject by universal and regional human rights treaties. Bearing in mind the importance of practice in standard-setting, what States and others actually say and do, the section winds up with a brief review of recent UN, IPU and regional activity.
Section 3, which constitutes the bulk of the study, examines the `constituent elements' in a system of free and fair elections: law and administration, including constituency delimitation and electoral commissions; voter rights and voter registration; civic education and voter information; candidates, political parties and political organization; electoral campaigns, including human rights and the election environment, media access and coverage; balloting, monitoring and results; and briefly, complaints and dispute resolution. The section finishes with a summary evaluation of recent experience in the field of election observation, showing wherever possible the commonality of principles and standards between established and emergent democracies.
Finally, Section 4 attempts to bring together the essential elements which international law proposes as the basis for a system of representative government, founded on periodic, free and fair elections. At the same time, due regard is paid to the self-evident truth that there is no single electoral model suitable for every country, but that each must forge the system most appropriate to realizing the will of the people in a particular social, historical and cultural context. This section is roughly divided between principles and process, identifying, on the one hand, the area of absolute or qualified obligations; and, on the other hand, the mechanisms of implementation, the details of which may vary between States, but whose objectives are essentially the same.
1.2. Sources
A number of quite different `sources' have been used in the course of this study and call for explanation, if only to signal awareness of the distinction between what the law is and what the law ought to be.
First, the study draws in particular upon relevant international texts, the most important of which are reproduced in Annex 1. They include treaties, which establish international obligations between the parties; formal declarations by States in international and regional bodies; and resolutions, such as those adopted by the UN General Assembly. Secondly, selected practice is used, the material sources for which include State legislation, the practice of international organizations, executive and judicial decisions. Thirdly, as `secondary' evidence, the reports of United Nations, Commonwealth and other international observer missions sent to `verify' or monitor the conduct of elections have been relied on, focusing on situations of transition from one-party authoritarian rule to a multi-party system, or on the implementation of the election component in internationally-brokered peace arrangements. Although international observer missions are increasingly a subject for standard-setting,5 the value of such reports clearly varies. Where appropriate, the terms of reference of such mission are described, together with their findings on local law and practice. At their best, which often means where corroborated, election observer reports give clear information on law and administrative practice, indicating also the extent to which the State does or does not conduct itself in the elections context in accordance with international rules and standards, and whether the national process as a whole approaches the ideal of a free and fair election. It must be emphasized that international law gives no right to observe an election, and does not require any State to submit its electoral process to a system of international `validation'; neither is it the case, however, that national elections are still exclusively a matter for the reserved domain of domestic jurisdiction.6
1 See below, sections 2.2 and 2.4.
2 But see section 7 of the CSCE Copenhagen Document; below, section 2.6.
3 The word comes from Governor Elbridge Gerry, for his division of an electoral district in Massachusetts in 1812 for party purposes.
4 See Council of Freely Elected Heads of Government, Observing Nicaragua's Elections, 1989-1990. Special Report #1, (1990), 34.
5 See, for example, Norwegian Helsinki Committee. Norwegian Institute of Human Rights. Manual for Election Observation. Mimeo. Draft. Oslo, (1993); and below.
6 See Gros Espiell, H., `Liberte des Elections et Observation Internationale des Elections.' Mimeo., Conference international de la Laguna, Tenerife, 27 fevr.-2 mars 1994. Following a review of the Inter-American System in particular, he concludes: `Dans Ie droit international d'aujourd'hui tant sur le plan universel que, selon le cas a 1'echelle regionale, europeenne et americaine, 1'organisation d'elections fibres, authentiques, pluralistes et periodiques, constitue une obligation intemationalement exigible. Cette question est sortie du cadre exclusif de la juridiction interne et du domaine reserve aux Etats.'
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