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4. International Standards
International law sets specific objectives with respect to the holding of periodic free and fair elections, and lays down a variety of related obligations. Principally if not exclusively obligations of conduct, they leave States to decide how, in their particular political, cultural and historical context, the objectives may be best achieved. A margin of appreciation, however, is not the same as complete freedom of choice, and even where there is discretion, international law sets certain conditioning parameters. For example, the principle of non-discrimination excludes a number of disenfranchising measures, while confining and structuring choices regarding constituency delimitation and the relative weight of voting power, both considered in the light of the complementary principles of representation by population and equal suffrage. The rule with respect to the secret ballot crosses from an obligation of result to one of conduct; alternatives are not allowed. Instead, the State is bound to take such steps as are necessary to ensure not only that secrecy is observed and maintained, but also that the integrity of the choice so made is protected in the count that follows and in the implementation of the result.
Fundamental human rights, for example, to hold and express opinions, to receive and share information, as well as freedom of movement, association and assembly, all give specific content to, and thus limit, the choices open to States in the regulation of an electoral campaign. If the will of the people is to find expression in a genuine election involving policies and representatives, then human rights must be effectively respected and protected so as to allow an informed choice to be made; only the narrowest of limitations are permitted, commensurate with what is necessary in a democratic society and with the paramount consideration of ensuring that the election reflects the will of the people.101
The choices made by the State are thus to be applied so that they are effective, that is, oriented to the objective of a free and fair election; and in such a way as to take account of other obligations in the field of human rights. Complementary principles of reasonableness and proportionality operate at the same time, to show when and where State choices, including omission, fail to meet international requirements.
Obligations in international law are not generally self-executing - they need implementation at the domestic level. The complexities and inter-relationships between electoral rights and objectives seem clearly to require a statutory framework and appropriate machinery, but neither universal nor regional human rights instruments contain any formal obligation to enact electoral legislation. The practical choices open to States in meeting their international obligations are not unlimited, however, and certain means are increasingly preferred. Article 2(2) of the 1996 Covenant on Civil and Political Rights, for example, provides that `Where not already provided for by existing legislative or other measures, each State Party...undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized...' The objective of free and fair elections, with its foundation both in the recognition of individual rights and in the existence of regular and open procedures, limits the range of options. Legislation can thus be considered essential to establish the country specific scheme of representation, to identify applicable human rights and their beneficiaries, such as who may vote, and to ensure the availability of effective remedies. It is not the final answer, however, for neither freedom nor fairness can simply be legislated into every corner of the electoral process.
From an international law perspective, what counts is what finally results, and a tradition of free and fair elections must be maintained and consolidated over the long-term. To this extent, election obligations and the goal of representative democracy have a programmatic dimension, anticipating progress in building democratic institutions, strengthening the confidence of the people in the democratic process, and leading to better and more democratic government. In the furtherance of these aims, therefore, States should
- Take the necessary legislative steps to establish the rights and institutional framework for periodic and genuine free and fair elections, in accordance with their obligations under international law; and
- take the necessary policy and institutional steps to ensure the progressive achievement and consolidation of democratic goals.
This review of State practice, considered together with and as contributing to the governing rules and principles, suggests the following minimum international law standards applicable to elections which, for the purposes of summary classification, can be divided into three categories: (1) the goal or objective set by international law; (2) the rights and responsibilities of individuals and political parties or groups; and (3) the combination of specific duties, programmatic obligations, responsibilities and entitlements incumbent on the State.
4.1. The Goal or Objective
International law's goal and the means by which it should be achieved can be stated quite simply: Every State should be possessed of a government whose authority derives from the will of the people as expressed by secret ballot in genuine free and fair elections held at regular intervals on the basis of universal and equal suffrage.
4.2. The Rights & Responsibilities of Individuals & Political Parties
In their law and practice. States must recognize and make provision for:
- the right of the individual to vote, on a non-discriminatory basis, in parliamentary elections
- the right of the individual to access an effective, impartial and non-discriminatory procedure for the registration of voters
- the right of every eligible citizen to be registered as a voter, subject only to disqualification in accordance with clear criteria established by law, that are objectively verifiable and not subject to arbitrary decision
- the right of the individual whose right to vote or to be registered is negatively affected by an action or omission of the State or its officials to have access to a procedure competent to review such measures or to correct such errors promptly and effectively
- the right of the individual to have equal and effective access to a polling station in order to exercise his or her right to vote
- the right of the individual to exercise his or her right equally with others and to have his or her vote accorded equivalent weight to that of others
- the right of the individual to vote in secret, which right shall not be restricted in any manner whatsoever, and to respect for the integrity of his or her choice
- the right of the individual to present himself or herself as a candidate for election
In addition, individuals enjoy rights of association, for example, to establish or join political parties; and, together with such political parties, they in turn enjoy campaign and related rights. States therefore must provide for the following:
- the right of the individual to join, or together with others to establish, a political party for the purpose of competing in an election
- the right to express political opinions without interference otherwise than as permitted under international law
- the right to seek, receive and impart information and to make an informed choice
- the right to move freely within the country in order to campaign for election
- the right to campaign on an equal basis with other political parties, including the party representing the existing government
- the right to have access to the media, particularly the electronic media, in order to put forward their political views
- the right of candidates, political parties and party members to security with respect to their lives and property
- the right to the protection of the law and to a remedy for violation of political and electoral rights
Electoral and political rights carry responsibilities to the community; national legislation should also recognize,
- the obligation of the individual and of political parties not to engage in or incite violence
- the obligation of candidates, political parties and party members to respect the rights and freedoms of others
- the obligation of candidates, political parties and party members to accept the outcome of a free and fair election
4.3. The Rights and Responsibilities of Government
Experience and recent State practice confirm the necessity for oversight of the electoral process, for institutionalized responsibility for implementation by impartial election officials, and for civic education. An oversight mechanism that enjoys the confidence of parties and electorate is especially pressing in situations of transition, for example, from single- to multi-party systems, or wherever the impartiality of the administrative authorities is in doubt. The effective institutionalization of basic electoral and political rights obliges States not only to establish an appropriate electoral system and to implement international obligations in regard to the individual rights, but also,
- to provide for the holding of legislative elections at regular intervals
- to establish a neutral, impartial and/or balanced mechanism for the management of legislative elections
- to establish an effective impartial and non-discriminatory procedure for the registration of voters
- to lay down by law clear criteria for the registration of voters, such as age, citizenship and residence, and ensure that such criteria are applied without discrimination
- to lay down by law the regulations governing the formation, registration and functioning of political parties
- where appropriate in the circumstances, to provide for or regulate the funding of political parties and electoral campaigns, with a view eventually to promoting equality of opportunity
- to ensure the separation of party and State
- to establish the conditions for competition in legislative elections on an equitable basis
- to ensure that electors have a free choice by maintaining the viability of political parties, for example, by public funding and/or guaranteed free time in the media
- to allow parties and candidates equality of access to government-controlled media
- to ensure, through national programmes of civic education, that the population become familiar both with election procedures and issues
In addition to implementing measures. States should also take the necessary policy and institutional steps to ensure the achievement of democratic goals and the progressive strengthening of democratic traditions, for example, by establishing a neutral, impartial or balanced mechanism for the management of elections. Any such agency thereby created should,
- ensure that those responsible for the administration of the election are trained and act impartially
- ensure that coherent voting procedures are established and made known to the voting public
- ensure the registration of voters, updating of electoral rolls and balloting procedures, with the assistance of national and international observers, as appropriate
- encourage parties, candidates and the media to accept and adopt a Code of Conduct to govern the election campaign and the polling period
- ensure the integrity of the ballot through appropriate measures to prevent double and multiple voting and fraud
- ensure the integrity of the process for counting votes
- announce the election results and facilitate any transfer of authority
The principle of the secret ballot implies certain minimum conditions, ranging from the supply of booths and other voting materials, to the location of polling stations and the orderly organization of vote casting. Experience confirms that elections are more likely to be free (that is, the internationally required objective is more likely to be reached), if all major parties have monitors or poll watchers. The State should therefore ensure that,
- voters are able to cast their ballots freely, without fear or intimidation; the authorities should take such steps as are necessary to protect voters from threats or other violence
- the secrecy of the ballot is maintained
- the ballot is conducted so as to avoid fraud or other illegality, and so as to ensure its own security
- the integrity of the process is maintained, and that ballot counting is undertaken by trained personnel, subject to monitoring and/or impartial verification
Under international law. States are obliged to respect and to ensure the human rights of all individuals within their territory and subject to their jurisdiction. This general obligation is particularly important at election times, when the exercise of certain rights is directly related to the goal of a free and fair election at which the will of the people can be expressed. Through its laws and policies, the State and its organs should therefore ensure,
- that freedom of movement, assembly, association and expression are respected, with particular reference to the holding of political rallies and meetings
- that parties and candidates are free to communicate their views to the electorate, and that they enjoy equality of access to State and public service media, which should also provide non-partisan coverage of election campaigns
- that parties and candidates, so far as practicable, enjoy reasonable opportunities to present their electoral platform
- that parties, candidates and supporters enjoy equal security, and that the authorities take the necessary steps to prevent electoral violence
Governments, even unelected ones, also have responsibilities to the communities of which they are a part. In the interests of peaceful change and to protect the rights and freedoms of citizens, governments may therefore have the right and the obligation to limit the rights and activities of those whose conduct constitutes an incitement to violence or otherwise undermines the democratic process. In accordance with the general provisions of international law, however,
- election rights should only be subject to such restrictions of an exceptional nature which are in accordance with law and reasonably necessary in a democratic society in the interests of national security or public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others and provided they are consistent with States' obligations under international law.
- permissible restrictions on candidature, the creation and activity of political parties and campaign rights should not be applied so as to violate the principle of non-discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Finally, a free and fair electoral system must also be able to deal effectively with the different types of complaint that will inevitably arise. The principle of effectiveness of obligations and the human right to a remedy for violations require,
- that complaints and challenges in electoral matters be determined by an independent and impartial authority, such as an electoral commission or the courts, that decisions be reached promptly, within the timeframe of the election, and that procedures be open and known to the electorate and the parties.
5. Conclusion
At the beginning of this Study, the relatively cautious views of several publicists were cited, particularly in regard to the notion that international law might, or more likely might not, require either representative or democratic government. The present review of State practice and the increasingly normative activities of inter-governmental and non-governmental organizations require that this natural caution be reconsidered. This is a time of change, and a time, not necessarily for rejecting, but for re-evaluating traditional doctrine on certain fundamental issues in the system of international organization, including that of entitlement to represent the State.
This may not be the moment to make representative democracy a condition of membership in the society of nations, but it is certainly not too early to assert that the manner by which the will of the people is translated into representative authority has indeed become a proper subject of international law.
101 At times, there will evidently be tension between one's appreciation of the needs of a democratic society and of what must be tolerated in order to ensure a free and fair election. These issues are by no means new in the human rights context, however, and are capable of objectively justifiable resolution without resort to overriding theories of national security.
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