International Standards
The term ‘international standards’ used throughout this online Compendium refers to the principles defined in international instruments, including political declarations, and to the clarifications and interpretations that have been developed by human rights bodies and courts to specify the scope of application and the substantive content of these principles.
International human rights treaties and other instruments define minimum standards as obligations that can be fulfilled by different means which are largely left to the discretion of States. That said, during the last 30 years, international human rights law has evolved considerably over the question of the best way to achieve the goal of democratic elections, and a set of criteria for democratic elections has gradually emerged based on international law, the practice of States, and inter-governmental organisations. These developments aim to clarify the principles in ways that take account of concrete situations.
In that sense, the term ‘international standards’ also includes comments and clarifications provided by regional courts and human rights monitoring bodies. The authority of their interpretation of treaty provisions is such that it is to be considered an integral part of international standards.
This online Compendium presents a series of documents which have been adopted at universal level or at regional level. The normative strength and the nature of the various standards vary from that of obligations to political commitments.
Universal instruments have been adopted within the United Nations (UN), usually as a result of negotiation and diplomatic exchanges. Since almost all States are represented in the UN, instruments and texts adopted tend to have a large degree of support at universal level.
Regional instruments have been adopted within regional organisations, such as the African Union, the Organization of American States and the Council of Europe.
1. Treaty StandardsTreaty standards are standards contained in a treaty. A treaty can be concluded at both international and regional level, and is binding under international law for those States expressing their consent to be bound by the treaty. Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. States cannot, by acts or omissions, derogate from the treaty standards, unless this is expressly provided for in the treaty, or the State has made a specific reservation to that effect. Treaties are denominated in a variety of ways, e.g. as treaties, agreements, conventions, charters, or protocols.
Signature, ratification, and accession: The consent of a State to be bound by a treaty is usually expressed by signature followed by ratification of the instrument. When a State has only signed the treaty, or pending the treaty’s entry into force, the State is obliged to refrain from acts that would defeat the object and purpose of a treaty. Alternatively, States that did not sign the treaty while it was open for signature can still become a party of the treaty by ‘acceding’ to it. Accession and ratification have the same legal effect. Some countries also use the terms ‘acceptance’ or ‘approval’ to express their consent to be bound. When in doubt whether a State has ratified, acceded or approved a treaty, practitioners should refer to that State as being ‘a State party to’ the treaty. Information about ratification and signature status can be found on the United Nations Treaty Series database and from the websites of the respective international organisations. Links to the ratification status are provided on this platform under ‘Universal Instruments’ and regional tabs.
Interpretation and enforcement at regional level: human rights protection systems have emerged in the Americas, Europe and Africa, with regional human rights courts and commissions providing forms of redress in cases of alleged violations of the relevant human rights treaty. State parties to a human rights treaty decide whether they accept the competence of these courts and commissions to consider individual cases.
Treaty Monitoring Bodies: Within the UN system, each human rights treaty has its own ‘treaty monitoring body’, in charge of following the adherence of States parties to their human rights obligations. Treaty monitoring bodies are not courts. They generally have limited investigative power, and their observations and recommendations are not legally binding, even though they have a strong moral strength.
As of July 2022, there are nine human rights treaty bodies which monitor the implementation of the core international human rights treaties:
In addition, the Optional Protocol of the Convention against Torture (2002) has established a Subcommittee on Prevention of Torture (SPT), a new form of treaty body focused on prevention.
Of particular significance for election-related matters are the observations and recommendations of the UN Human Rights Committee (CCPR), the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on the Rights of Persons with Disabilities (CRPD).
General Comments (or Recommendations) are issued by treaty monitoring bodies in order to provide their interpretation of specific provisions of the relevant treaty. This also serves to make the experience of the monitoring body available for the benefit of all States Parties, and to promote the further implementation of the treaty and facilitate the compilation of State reports. General Comments/Recommendations referred to in this Compendium are, for example, General Comment 25 on The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Article 25) (1996) adopted by the Human Rights Committee and General Recommendation 23 on Political and Public Life (1997) adopted by the CEDAW Committee.
Concluding Observations and Views: In addition to general comments or recommendations, the treaty bodies issue ‘concluding observations’ after dealing with the periodic reports from the States parties. They may also issue opinions/views/communications in individual cases submitted to the treaty bodies, provided that the treaty contains such a mechanism and the State in question has accepted the competence of the treaty body to examine individual cases. The documentation concerning concluding observations on countries and views on individual cases can be accessed through the websites of the different treaty bodies. This Compendium provides links to specific treaty-body case-law relevant to electoral rights.
2. Non-treaty StandardsNon-treaty standards are sometimes called ‘soft law’ instruments. This is a body of resolutions of inter-governmental organisations containing declarations, commitments, joint statements, or declarations of policy or intentions. The main factor distinguishing non-treaty standards from treaty obligations is the intention of the drafters, i.e. whether they intended for the document to be legally binding or not. Non-treaty standards are usually adopted by the highest decision-making bodies of international organisations concerning issues that reflect new concerns or developments on which the political will to conclude a legally binding treaty is insufficient, or the matter is of such a nature that the adoption of non-treaty standards is better suited for the intended purpose. Non-treaty standards can, however, be used as interpretative tools in establishing the contents of a particular treaty standard, and they can be considered to be indicative of emerging trends in international law. In that respect, they contribute to the formation of customary international law, especially if adopted by consensus.
Declarations and resolutions (except for Security Council resolutions, which are legally binding) adopted under the auspices of the United Nations are typical examples of non-treaty standards. This includes the Universal Declaration of Human Rights (1948), the provisions of which constitute a strong moral commitment to the protection of the human rights contained in the Declaration. Other examples of non-treaty standards referred to in this Compendium are the General Assembly Resolution A/RES/46/137 (1991) on Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections, the Inter-American Democratic Charter (2001) and the AU Declaration on the Principles Governing Democratic Elections (2002). In the case of the AU Declaration, however, its normative status has been elevated by reference to it in the 2007 African Charter on Democracy, Elections and Governance.
Political commitments may contain standards, but can be considered as part of a political dialogue between the States concerned, the intention of which is not to make the standards binding at the level of international law. Political commitments are pledges that governments make to each other to comply with certain standards of conduct, but without the threat of formal sanctions normally attached to the violation of treaty standards. Examples of political commitments contained in the Compendium are the OSCE Copenhagen Document (1990) and the OSCE Istanbul Summit Declaration (1999).
Other documents and initiativesWhen assessing an electoral process, EU observers may rely on other sources than ‘international standards’ in the narrow sense. Reference can be made, for instance, to ‘good practice’, meaning State practices that help illustrate how countries can fulfil their obligations while accommodating their specific needs. These documents do not create norms, but provide indications on how to fulfil the norms; they provide examples of practices that can help States implement their obligations. Broadly used references of good practice are, for example, the ‘Code of Good Practice in Electoral Matters’ (2002) of the European Commission for Democracy through Law (Venice Commission) and the ‘Principles for Election Management, Monitoring, and Observation in the SADC Region’ (PEMMO) (2003).
EU observers must use these sources with caution. They may benefit from a broad consensus within the election expert community, but may not be universally accepted. Texts and documents promoting assessment criteria that go beyond what can be inferred from legally binding or politically-binding instruments may be useful as guidance, but they should not be referred to as binding norms, and their use in support of EU EOM recommendations may raise issues of acceptability by the host country.
Before World War II, no comprehensive set of human rights was recognised at the international level. Rules concerning political participation were confined to the sphere of national legislation and were in some cases provided for in a general manner in national constitutions.
Following World War II, the conviction began to take hold that such rights should be granted in a binding form at the international, rather than national, level. The Charter of the United Nations (UN) adopted in 1945 mentions the concept of ‘human rights’ in its preamble and in a number of other provisions, including Article 1, which sets forth the purposes of the United Nations. However, the meaning of these ‘human rights’, their substantive content, is not spelled out in the Charter.
The UN then assigned a committee with the task of formulating a set of human rights for later adoption in a Bill of Human Rights. This work led to the adoption of the Universal Declaration of Human Rights (hereafter, the Universal Declaration) by the United Nations General Assembly (UNGA) in December 1948, an adoption that took place just before the onset of the Cold War. It is important to remember that formally speaking the Universal Declaration is not a treaty but a non-binding UNGA resolution. However, it contains at least a number of norms which have the status of customary international law, although this does not yet appear to be the case concerning Article 21 on participation and elections. The Universal Declaration has been regarded as being:
‘an authoritative interpretation of the term ‘human rights’ in the UN Charter, and thus can be considered indirectly constituting international treaty law. All human rights activities and mechanisms of the Human Rights Commission and other bodies of the United Nations, which are directly based on the Charter, refer to the Universal Declaration as universally recognised standards accepted by all States’.[1]
The adoption of the Universal Declaration marked the beginning of the development of participation as a human right. Participation – directly or through freely chosen representatives – is the norm to which a number of other substantive human rights are connected. In the Universal Declaration, the right to participation is included in Article 21.
Article 21 of the Universal Declaration of Human Rights (UDHR) (1948)
While the article does not make any distinction between individuals on the basis of, for instance, citizenship, the norm obviously presumes an organic link of some sort to a particular country, either on the basis of residence or citizenship.
The article is mainly concerned with the level of central government, rather than regional or local government. The exact body in which everyone is entitled to participate is not specified; it could be the parliament or even the executive in those cases where the executive is elected. However, it is clear that the judiciary is outside the scope of at least paragraphs 1 and 3 of Article 21, because of the reference to government.
Participation in the government of a country should, according to Article 21, be either direct or through freely chosen representatives. It is easy to make a prima facie conclusion that such participation is determined either through a referendum or an election.
In Article 21(3), it is said that the will of the people shall be the basis of the authority of government. Hence the exercise of public power is to be legitimised by the people. The minimum level of participation in government is defined after the semi-colon, where an explanation is given of how the will of the people shall be expressed, with reference to a series of election elements. These election elements provide the operational dimension of the right to participation, and they are the key references for assessing elections.
The first requirement of Article 21(3) is that elections must indeed be held; otherwise the government does not ground its authority in the will of the people. The other elements are periodic elections, genuine elections, universal suffrage, equal suffrage, and secrecy of the vote.
The element of periodic elections implies that a country’s legislation should prescribe a certain period after which elections must take place. The purpose of this is to ensure that the authority of government continues to be based on the will of the people. Nothing is said about the length of the period, although it should not be unduly long. This element also contains the implicit need for a responsive election administration or other such structure to ensure the timely conduct of elections.
The element of genuine elections may be understood at two levels. In the broader sense, the adjective genuine can be seen to bring in the adjacent political freedoms and rights, such as the freedom of expression, assembly, association, and movement. In the narrower sense, the element of genuine election refers to voters having a real choice between distinct political options and contestants.
Universal suffrage defines the electorate. This element concerns who, among the ‘everyone’, should have the right to participate in elections, with a premise that it should be defined as inclusively as possible. It is understood on the basis of Article 21 paragraph 1 that a relationship of some sort between the individual and the country in question can be required.
The reference to equal suffrage is related to equality among the electorate in the actual voting. This translates into the maxim ‘one person, one vote’. That is to say, voters should have an equal number of votes at their disposal when carrying out the act of voting. Also, each vote should count more or less the same, with implications for the delineation of electoral district boundaries. Gerrymandering, the opportune changing of electoral boundaries in bad faith, is inadmissible under the principle of equal suffrage.
The element of a secret vote is quite clear and is an essential condition for the vote to be free. It holds that the voter should cast his or her vote in secret. No one else should be able to see how the voter votes, guaranteeing that the person is actually in a position to vote according to his or her own conviction, free from influence and coercion from anyone else during the act of voting. The secrecy of the vote should also imply that it is impossible to attribute a vote, marked in the secrecy of the polling booth, to any particular voter. Rather, the ballot paper, when marked and dropped into the ballot box, must be completely anonymous in relation to the voter who marked it. There may be special procedures for persons unable to mark the ballot paper themselves, such as illiterate or physically impaired voters. As far as possible, the secrecy of the vote should be respected for these persons as well.
The plan to create a global Bill of Human Rights was completed in 1966 with the adoption of the two UN Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. In relation to the Charter of the United Nations and the Universal Declaration of Human Rights, the two UN Covenants implement the Universal Declaration by creating a binding set of human rights norms at the level of international law. The ICCPR also creates its own treaty monitoring body to monitor the adherence of States parties to the Covenant: the UN Human Rights Committee.
Article 25 ICCPR
Article 25 of the ICCPR contains a set of rules about elections.
Article 25 of the International Covenant on Civil and Political Rights (ICCPR) (1966)
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
Article 25 is about participation; it does not mention the word democracy. In fact, it deserves to be repeated that very few binding human rights documents do so, and when they do, it is mainly in their preamble. However, Article 25 does introduce a number of human rights aspects into the electoral process, and identifies elections as a central component of participation while defining a number of election-related elements as a minimum level of participation.
Article 25 refers to ‘every citizen’. This is clearly a specification and delimitation of the contents of Article 21 in the Universal Declaration, where the terms ‘everyone’ and ‘government of his country’ are used. Now the situation is clear concerning the exercise of the sovereign law-making powers: the States may limit the rights guaranteed in Article 25 of the ICCPR to that group of persons the State itself has recognised as being its citizens.
Article 25 refers to the right and the opportunity to take part. This too differs from Article 21 in the Universal Declaration. This reference is there to make clear to the States that the right to participate should not only be guaranteed as de jure, but also de facto. Thus, the State is required to take positive measures to give effect to the right to participation. Such positive measures may include, for example, the effective registration of voters that is as inclusive as possible, the provision of accessible and inclusive candidate registration procedures, and the convenient locating of polling stations.
Article 25 refers to ‘the distinctions mentioned in Article 2’ of the ICCPR. These include discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. These grounds of distinction are examples through which prohibited discrimination can be identified. The reference to Article 2 brings the principle of non-discrimination into the ambit of Article 25 of the ICCPR, but it should be noted that such a dimension is included already in the very first word of Article 25: ‘every’.
As concerns the notion of unreasonable restrictions referred to in the chapeau, nothing specific is mentioned. This means that the content of such restrictions is a matter of interpretation. The body created to oversee the implementation of the ICCPR, the UN Human Rights Committee, determines what is to be understood by ‘unreasonable restrictions’, especially in the views it expresses in ‘concluding observations’ relating to specific countries and on individual cases (see Human Rights Protection Systems).
In comparison with Article 21 of the UDHR, the institutional scope of Article 25 is broader. Whereas Article 21 is primarily focused on the government of a country, Article 25 of the ICCPR refers to the conduct of public affairs. Institutionally speaking, participation should thus not only take place in relation to the national government, but also in relation to other levels and forms of administration, such as regional and local government levels.
In its General Comment 25, the UN Human Rights Committee has held that direct participation in the conduct of public affairs implies that a person may take part, for instance, as a voter in elections, as a voter in a referendum, as a participant in local decision-making assemblies, as a member of legislative bodies, as a person holding executive office or as a member of a body established to represent citizens in consultation with government (paragraph 6).
The way in which the representatives shall be chosen so that there is a free expression of the will of the people is established in paragraph (b) of Article 25. This paragraph can be understood as an operationalisation of paragraph (a) as concerns direct voter participation in elections and as concerns the reference to freely chosen representatives. This operationalisation actually defines what the ICCPR understands by the term ‘elections’. According to the article, there shall be the right and the opportunity ‘[t]o 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.’ This provision contains at least two distinct matters: firstly, the necessary elements for elections, and secondly, the idea of an electoral cycle or a time-span during which the various elements for elections shall be implemented.
It is also important to mention what Article 25(b) does not contain. Firstly, it does not contain a definition of democracy, although it seems to indicate a preference for a representative system of government. Direct popular decision-making through a referendum is, however, not excluded. In fact, the election norms are also relevant for assessing referendum procedures, because at least some of the election elements are also applicable to referenda. Secondly, the provision does not prescribe any particular electoral system.
Election Elements as defined in Article 25 of ICCPR
Regarding the elements of an election, it is possible to identify a number of distinct features, namely: the right to vote and the right to stand as a candidate, genuine as well as periodic elections, universal as well as equal suffrage, the secrecy of the ballot and the free expression of the will of the electors. In comparison with Article 21 of the Universal Declaration, the right to stand as a candidate is a new and very important dimension, no longer only implied but made explicit.
As concerns the electoral cycle, it is possible to argue on the basis of paragraph (a) of Article 25 that the right to participation in the conduct of public affairs is a continuous right.
The attribution of a continuous character to the right to participate through elections strongly underlines the fact that elections and participation are not limited to the simple act of voting on election day. Rather, the continuous character of the right to participate implies that elections are a process of a cyclical nature: when one election has been completed and those elected have assumed their seats, the process starts again.
The continuous character of the right to participate beyond the immediate act of voting also has wider implications. It requires that a number of other human rights closely linked to the right to participation be taken into account. The adjacent political rights of freedom of association, freedom of assembly and freedom of speech are brought into the election context in a more substantive way through understanding elections as a cycle, and the requirement for genuine elections in Article 25. (See Election-related Case-Law).
In its General Comment No. 34 concerning Article 19 on freedoms of opinion and expression (2011), the Human Rights Committee has underlined the relationship between Article 25 and Article 19 of ICCPR on freedom of expression in the following way: ‘The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential’ (Paragraph 6).[2]
The Human Rights Committee underlines the promotion and the protection of the freedom of expression in the context of Article 25, developing a doctrine that allows, inter alia, that all public figures, including those exercising the highest political authority such as heads of State and government, are legitimately subject to criticism and political opposition.
Through the term ‘every citizen’, the element of universal suffrage emphasises inclusiveness as well as non-discrimination within the group of persons to whom the right to vote is granted. As a practical matter, universal suffrage boils down to the composition of voter lists before the elections. The visible outcome of this election element is the specific list of voters managed by the election administrators on election day in the polling station.
There is a reference in Article 25(b) to the right to be elected. In comparison with Article 21 of the Universal Declaration, the provision is a novelty. It does not imply that citizens have a subjective right to become members of any elected body, but rather that all citizens qualifying under the provisions of the law should not only have the right, but also the opportunity, to stand as a candidate.
The right to stand for election also includes recognition of the right to stand as an independent candidate. In fact, according to the interpretation of the Human Rights Committee in paragraph 15 of General Comment 25, the ‘effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates’. Combined with the principle that candidates cannot be required to be members of parties in the first place, nor of specific parties (such as the one ruling party, as was ruled in the case of Peter Chiiko Bwalya v. Zambia, 1993, or to hold some defined political opinion, the scene is opened up for a competitive election.
As a practical matter, the element of standing for election implies that the national law should contain sufficient provisions concerning registration of parties and candidates so as to give all political opinions and groupings equal opportunity – without any of the distinctions mentioned in Article 2 of the ICCPR and without unreasonable restrictions – to officially become participants in the electoral process leading up to an election. Registration procedures should not be so difficult as to inhibit candidacy (e.g., an extremely high number of signatures required for candidacy, or an excessive deposit required from a party before a list of candidates is accepted for elections, or, as in the case of Lukyanchik v. Belarus, 2009 invalidating an initiative to nominate a candidate for presidential elections because two out of the original 64 supporters of the initiative allegedly had not given their consent, while the requirement established by law was ten supporters). During this stage of the electoral cycle, which is crucial for the outcome of the elections, the free expression of the electors’ will should not be unduly restricted, but rather promoted.
The element of the right to be elected could also be developed beyond ordinary concerns related to the nomination of candidates, so as to target a number of special groups such as women and minorities that may be at a disadvantage in the exercise of their rights in general, and their political rights in particular. Such targeting of special groups must not be arbitrary, but must be based on objective and reasonable criteria. This was not the case in Devianand Narrain et al. v. Mauritius, 2013 where information of ethnic background from a more than 30 years old classification of the population into four different communities was used as a compulsory criterion for potential candidates who, as a consequence, were unable to make a self-declaration on their proper community category and thus were effectively barred from standing for general election.
However, certain categories of persons may, under certain conditions, be excluded from the right to stand for elections. In the case of Joszef Debreczeny v. the Netherlands, 1995 it was alleged that the refusal to accept the credentials of an elected person for a seat of a local council, because the person was a police sergeant in the national police force, would be a violation of Article 25 of the ICCPR. The Human Rights Committee noted that:
‘the restrictions on the right to be elected to a municipal council are regulated by law and that they are based on objective criteria, namely the electee’s professional appointment by or subordination to the municipal authority. Noting the reasons invoked by the State party for these restrictions, in particular, to guarantee the democratic decision-making process by avoiding conflicts of interests, the Committee considers that the said restrictions are reasonable and compatible with the purpose of the law.’
Voting in elections on the basis of the right to vote is normally quite uncontroversial once a voter is registered on the voter list. It includes the right of access to the polling station as well as the right to receive ballot materials, to mark the ballot paper in a polling booth, and to deposit the ballot paper in the ballot box. The right to vote can also be said to include a right to have one’s vote counted. The development of electronic methods of voting may affect the procedure of balloting, and may raise concerns from the point of view of at least two other election elements, namely the secrecy and the equality of the vote.
The element of equal suffrage deals with the principle of ‘one person, one vote’ and its adjacent dimension that each vote should carry more or less the same weight. This has implications for the delineation of electoral district boundaries, for example. However, if justifiable reasons exist, it should not be impossible to undertake positive measures under the election law in order to promote the political participation of disadvantaged groups.
The element of secrecy aims at ensuring for the voter an environment in which s/he can make her or his own choice, without undue influence or intimidation from any other person, and without fear that her or his choice would become known after the vote has been cast.
The final election element in Article 25(b) of the ICCPR, the free expression of the will of the electors, is of a summary nature. Through the expression ‘guaranteeing’, it emphasises the importance of fulfilment of the other election elements. The free expression of the will of the voters is hence the aim of Article 25 of the ICCPR.
There are complicating factors here as well. For instance, political parties and candidates cannot, in most societies, carry out a significant election campaign without sufficient funds at their disposal. While such funds are needed, and the legality of donations to such ends cannot be questioned, campaign financing may come with strings that attach the party or the candidate to the donor. To prevent legitimate campaign funding from transgressing the line and becoming a non-legitimate method of influence, some regulatory measures are needed. This has been identified as an area of possible legislative action by the Human Rights Committee in paragraph 19 of General Comment 25:
‘Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party.’
In respect to illegal donations, action has been taken by different international organisations through the adoption of conventions for the fight against corruption, such as the United Nations (2003), the Organization of American States (1996), the African Union (2003), the Council of Europe (1999), the European Union (1997) and the Organization of Economic Co-operation and Development (1997). In most cases, these anti-corruption conventions include rules concerning elected public officials and civil servants that may also become relevant in the context of elections. Such anti-corruption rules may protect, in particular, two election elements, namely equal suffrage and the free expression of the will of the voters, at the same time as they set requirements that promote the transparency and integrity of election management.
The issue of the free expression of the will of the electors is, of course, not closed once internal safeguards are in place. It must also be possible to bring election issues for external review as regards their legality. For this reason, complaints mechanisms must be in place. Voters, as well as parties and candidates, should be given the opportunity to claim their rights before the judiciary and raise claims about the conduct of the elections, from voter registration to the allocation of mandates. For instance, under Article 2(3) of the ICCPR, each State party undertakes to ensure that any person, whose rights or freedoms recognised in the ICCPR are violated, has an effective remedy. The remedy should preferably be judicial. According to the Human Rights Committee General Comment 25, ‘[t]here should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes.’ (Paragraph 20) The ultimate sanction should be the disqualification of the elections, with the practical outcome of new elections, either in the entire country or in the constituency that has been affected by misconduct, although the sanction should always be proportional to the breach of law.
As this review of the contents of Article 25 of the ICCPR shows, the right to participation is particularly well-specified in the area of the electoral process, within which a number of well-established rules exist. A summary of what elections should look like under Article 25 of the ICCPR is contained in General Comment 25 of the Human Rights Committee:
‘Although the Covenant does not impose any particular electoral system, any system operating in a State party must be compatible with the rights protected by article 25 and must guarantee and give effect to the free expression of the will of the electors. The principle of one person, one vote, must apply, and within the framework of each State's electoral system, the vote of one elector should be equal to the vote of another. The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.’ (Paragraph 21)
The right to participate in public affairs is further protected in a number of other more specific universal human rights instruments, such as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as in the 2006 Convention on the Rights of Persons with Disabilities (CRPD). These conventions aim to ensure that all the rights set forth in ICCPR can effectively be exercised in an inclusive manner.
Article 5, Convention on the Elimination of All Forms of Racial Discrimination
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
[…]
(c) Political rights, in particular the right to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; […]
In Article 5 of the ICERD, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee to everyone, without distinction, the enjoyment of political rights, in particular the right to participate in elections through voting and through the opportunity to stand for election on the basis of universal and equal suffrage. Eligibility on equal terms is hence explicitly at the core of Article 5(c) of the ICERD. The ICERD emphasises non-discrimination, but it also contains an element of positive measures when establishing a guarantee of the right to participation for everyone without distinction as to race, colour, or national or ethnic origin. In this respect the ICERD is of relevance for minorities of all kinds.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979-1981)
Women are clearly included among the persons who, on the basis of the Universal Declaration and the ICCPR, shall have the right to participate in government or public affairs respectively. However, in most countries, the position of women in governmental structures does not reflect their share of the population, and therefore, the CEDAW has the important function of ensuring the States take measures to bridge existing gaps regarding women’s role in public life.
In contrast with the 1952 Convention on the Political Rights of Women, which focused on achieving de jure equal rights to vote and to stand for women, CEDAW brings about the notion that in order to address existing entrenched inequalities and discrimination, temporary special measures may be necessary, with the aim to achieve de facto equality between men and women.
Convention on the Elimination of All Forms of Discrimination against Women
Article 4
Article 7(a) of CEDAW promotes inclusiveness for women by prescribing eligibility for election to all publicly elected bodies in a manner relevant for the right to stand for candidacy. It also extends inclusiveness in paragraphs (b) and (c) to the practical functioning in elective office and to participation in non-governmental organisations and associations concerned with the public and political life of the country.
Convention on the Elimination of All Forms of Discrimination against Women
Article 7
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; […]
In 1997, the CEDAW committee adopted General Recommendation No. 23 on Article 7 (political and public life), which clarifies the States parties’ obligations under the Convention in matters of political participation. Further, in 2004, it adopted General recommendation No. 25, on article 4, paragraph 1 on temporary special measures, which elaborates on the meaning and scope of ‘temporary special measures’ in the sense of the Convention, inter alia, in relation to the principle of non-discrimination.
CEDAW and ICERD – together with the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, in which the right of effective participation of minorities is mentioned – point out that there are certain disadvantaged groups in society which may need special attention in terms of participation. It is of little help that these groups have an equal right to vote if no one from these groups is included among nominated candidates. Therefore, it may be possible to promote the participation of these groups already at the nominations stage, for instance, by informing them of the necessity to avail themselves of the legal mechanisms to nominate candidates.
This perspective is further supported in Article 5 of ICERD, with reference to the groups mentioned in the document. The ICERD provision refers to immediate accessibility through participation and the right to take part in government as well as in the conduct of public affairs at any level, and to the right to have equal access to public service. The language found in Article 5 joins the focus of Article 21 of the Universal Declaration and Article 25 of the ICCPR.
Measures to promote accessibility are also recommended, for instance in the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, where Article 2 tries to enhance the effective participation of minorities. Treaty bodies and human rights courts have developed case-law relevant for minorities stemming from different treaties inter alia, from the UN Human Rights Committee Marie-Hélène Gillot et al. v. France (2002), Devianand Narrain et al. v. Mauritius (2012), from the Inter-American Court of Human Rights, Yatama v. Nicaragua (2005), from the European Court of Human Rights, Gorzelik and others v. Poland (2004), Grosaru v. Romania (2010), Py v. France (2005), Sejdic and Finci v. Bosnia and Herzegovina (2009), and Zornic v. Bosnia and Herzegovina (2014).
Against this background, it is interesting to note what the European Court of Human Rights has said about pluralism, tolerance and broadmindedness as hallmarks of a ‘democratic society’, a concept running through the entire Convention, which is central to the protection of the substantive rights guaranteed in the ECHR: ‘Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’[3]
Convention on the Rights of Persons with Disabilities (CRPD) (2006-2008)
The Convention on the Rights of Persons with Disabilities establishes principles on the participation of persons with disabilities in political and public life in its Article 29. While the provision creates positive obligations on the part of the State to ensure the inclusion of voters with disabilities, it simultaneously benefits every other voter in many ways.
Article 29, UN Convention on the Rights of Persons with Disabilities (2006)
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
CRPD is a far-reaching document whose entering into force in 2008 marked a paradigm shift in the way disability is considered in international law. No longer is the focus on a person’s impairment per se, but rather on the obligation of societies to be inclusive and accommodate individual differences. In the electoral context, this means authorities have the responsibility to proactively remove obstacles and facilitate participation, throughout the entire election process.
CRPD guarantees full participation in public life, including the right to vote and be elected for persons with disabilities, and does not refer to any possible reasonable restriction to these rights. Until recently, mental incapacity was generally regarded as a possible legitimate ground for limiting suffrage rights, provided that restrictions were based on an individual court decision. This matter is still in evolution, and jurisprudence is being developed by international human rights bodies as regards conditions for the right to vote of persons with mental disabilities, as illustrated by the diverse positions taken by the CRPD Committee in the case of Zsolt Bujdosó and five others v. Hungary (2013), the UN Human Rights Committee in its Concluding Observations on Belize (2013), and the ECHR in the case of Alajos Kiss v. Hungary (2010), Caamaño Valle v. Spain (2021), and Strøbye and Rosenlind v. Denmark (2021).
Post-1948, the plan to quickly adopt at the global level a complete Bill of Human Rights of a binding nature proved to be a difficult matter, mainly because of the Cold War and the differences of position between the West and the East concerning the contents of human rights and the meaning of democracy. Instead, steps were taken at regional level, particularly in Europe, where the Council of Europe was created in 1949, and its Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was adopted in 1950.
The ECHR does not contain any mention of participation as such, although its articles offer provisions concerning the adjacent political rights, that is, everyone’s freedom of expression, of association and of assembly. A First Protocol to the Convention was opened for ratification in 1952, which provided rights upon which the States had not agreed in time for their inclusion in the Convention, including a ‘right to free elections’.
Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1952-1954)
Article 3 – Right to free elections
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.
Interestingly, rather than providing citizens with a right to vote in elections, Article 3 of the First Protocol to the ECHR merely places an obligation on the States to organise elections. The wording of Article 3 does not indicate any individual right to participation in elections, and it was originally considered that Article 3 did not create subjective rights.
Nevertheless, the European Court of Human Rights (ECtHR) eventually pronounced itself on the matter and interpreted the article as creating an individual right, on the basis of which an individual under the jurisdiction of one of the State Parties can file individual complaints against that State. This interpretation of the ECtHR was given through the leading case of Mathieu-Mohin and Clerfayt v. Belgium (1987). The ‘people’ referred to in the article is to be understood as the citizens of the State, in the form of the electorate, consisting of individuals who are the beneficiaries of the provision.
Since the end of the Cold War, there has been a proliferation of case law resulting from Article 3. According to Article 3 in the First Protocol, elections shall be held at reasonable intervals. This qualification is somewhat more specific than the principle of periodic elections in Article 21 of UDHR and Article 25 of the ICCPR. In addition to the requirement of fixed intervals in national legislation, Article 3 asks the State to establish a reasonable interval for the elections. This requirement certainly excludes the possibility of fixing very long intervals – such as a generation or 10 years – while indicating that a normal length of parliamentary period should be identified. In the Member States of the Council of Europe, that period is between 3 and 6 years. It is not quite clear on the basis of the wording of Article 3 what the ‘conditions which will ensure the free expression of the opinion of the people’ are, but generally speaking the idea is to facilitate an atmosphere during the election times which is free from intimidation or coercion and other measures that could thwart the free expression of the opinion of the people in the choice of the legislature.
The evolution of the case-law contains milestones such as Hirst v. UK, Frodl v. Austria, Scoppola v. Italy and Anchugov and Gladkov v. Russia on the right to vote of prison inmates, Labita v. Italy on the use of special measures to combat infiltration of organised crime in politics as grounds for restricting the right to vote, Zdanoka v. Latvia on ineligibility of a candidate running for a party that had been declared unconstitutional for activities after the re-gained independence of Latvia, Tanase v. Moldova on prevention of elected MPs with multiple nationalities from taking seats in Parliament and Sitaropoulos and Giakoumopoulos v. Greece on the inability of the State to implement the right to out-of-country voting, just to mention a few (see section Election-related Case-Law).
The Organisation for Security and Cooperation in Europe
The freedom of political choice, familiar to us from the Universal Declaration and the ICCPR, is also reflected in the OSCE commitments adopted in the Copenhagen Document, which was adopted following the Cold War. Paragraph 3 declares that the participating States recognise the importance of pluralism with regard to political organisations. The Copenhagen Document maintains that ‘the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of authority and legitimacy of all government’. It is emphasised that ‘citizens should be able to take part in the governing of their country, either directly or through representatives freely chosen by them through fair electoral processes’.
The OSCE Copenhagen Document (1991)
(7) To ensure that the will of the people serves as the basis of the authority of government, the participating States will
(7.1) hold free elections at reasonable intervals, as established by law;
(7.2) permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;
(7.3) guarantee universal and equal suffrage to adult citizens;
(7.4) ensure that votes are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public;
(7.5) respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination;
(7.6) 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 and 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;
(7.7) 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;
(7.8) 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;
(7.9) 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 an end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures.
Paragraphs 7.1 and 7.2 of the Copenhagen Document make the same point at the level of political competition. Paragraph 7.2 stipulates that the participating States will ‘permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote’. This is sustained in Paragraph 7.6, which emphasises the necessity of legal guarantees to enable political parties and organisations to compete with each other on a basis of equal treatment before the law and the authorities. Competition between political contestants will be the basis for the expression of the electors' free will.
The Copenhagen Document, and the work of the OSCE more broadly, has been important to the development of electoral rules in Europe. The OSCE has played an important role in the development of election observation, through the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR), which is mandated to observe participating States’ compliance with the election-related commitments contained in the Copenhagen Document.
In addition, the OSCE has been active in the area of minority protection, another field touched upon in the Copenhagen Document. Binding norms emphasising the effective participation of minorities were issued by the Council of Europe in the 1995 Framework Convention for the Protection of National Minorities.
The Commonwealth of Independent States (CIS)
Also in 1995, another system of conventions was grounded by the Commonwealth of Independent States (CIS), originally founded in 1991, through which election-related norms were extended also to Central Asia. The CIS Convention on Human Rights and Fundamental Freedoms contains in Article 29 language similar to Article 25 of the ICCPR, but with the difference that participation through elections is guaranteed in accordance with national legislation. The problematic return of the right from the level of international human rights law to the level of national law may to some extent be mitigated by the 2002 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the CIS.
In its Preamble, the Charter of the Organization of American States (OAS) (1948) makes an important statement concerning national decision-making by concluding that representative democracy is an indispensable condition for the stability, peace and development of the region. In Article 2(b) of the OAS Charter, the promotion and consolidation of representative democracy is identified as an essential purpose of the OAS. Further, in its Article 3, the Charter determines that the essential elements of representative democracy include, inter alia, ‘respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government’.
Elections are here clearly embedded in a broader context of constitutional features. This is sustained by the American Declaration of the Rights and Duties of Man (1948), which defines the content of the fundamental rights referred to in the OAS Charter, and is the first international human rights instrument, pre-dating the UDHR by several months. The Declaration provides for a right to participation, and also for a duty to vote. Voting is mandatory in a number of States in the region.
The American Declaration on the Rights and Duties of Man (1948)
Article XX. Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.
Article XXXII. It is the duty of every person to vote in the popular elections of the country of which he is a national, when he is legally capable of doing so.
The Declaration was originally not intended to be binding. Both the Inter-American Court and the Inter-American Commission on Human Rights have held that, although originally adopted as a declaration and not as a legally binding treaty, the American Declaration is today a source of international obligations for the member States.
In 1969, the OAS adopted the American Convention on Human Rights. In its Article 23 it very much repeats the language of Article 25 of ICCPR, including the reference to ‘opportunity’. According to the case of Castañeda Gutman v. Mexico, the term ‘opportunity’: “implies the obligation to guarantee with positive measures that every person who is formally the titleholder of political rights has the real opportunity to exercise them. As the Court has previously indicated, it is essential that the State create optimum conditions and mechanisms to ensure that political rights can be exercised effectively, respecting the principle of equality and non-discrimination”. Other references to “opportunity” include Yatama v. Nicaragua (Inter-Am. CtHR, Jdg. of 23 June 2005) and López Mendoza v. Venezuela (Inter-Am.CtHR, Jdg. of 1 Sep. 2011).
Article 23. American Convention on Human Rights (1969)
Right to Participate in Government
Unlike Article 25 of ICCPR, Article 23 of the American Convention on Human Rights contains its own limitation clause. On the basis of this clause, the States Parties can, in national law, regulate the exercise of the rights and opportunities to participate in government on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings. Of these, some can be considered at odds with Article 25 of the ICCPR, which in its chapeau makes a reference to the principle of non-discrimination and to the prohibition of unreasonable restrictions. The language criterion could perhaps also be problematic in relation to Article 27 of the ICCPR and the recognition granted to linguistic minorities. If a State is party to the American Convention and the ICCPR at the same time, and chooses to use national legislation to create a legal limitation on the right of participation on grounds of language or education, it might be possible to argue that the national law is not in harmony with Article 25 of the ICCPR. The limitation related to mental capacity may also raise questions of compatibility with CRPD.
On the African continent, the African Charter on Human and Peoples' Rights was concluded in 1981 within the framework of the Organisation of African Unity (OAU). In Article 13 of this Charter, there is a participation clause that begins in a manner similar to Article 25 of the ICCPR and Article 21 of the Universal Declaration.
ARTICLE 13, African Charter on Human and Peoples’ Rights (1981-1986)
On the basis of Article 13, it is clear that citizens have the right to take part in government. Participation should be free, and representatives should be freely chosen. The African Charter on Human and Peoples’ Rights says nothing concrete about how participation should take place besides that participation can be direct or through freely chosen representatives.
Nonetheless, the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights have established a number of key principles for democratic elections on the basis of Article 13(1) of the ACHPR, and other regional instruments, such as the more recent African Charter on Democracy, Elections and Governance (see below). The African Court on Human and Peoples’ Rights has created a new forum for trying cases on the basis of individual applications, and in one of the very first cases resolved on the merits, Tanganyika Law Society et. Reverend Christopher Mtikila and others v. Tanzania in June 2013, the African Court found that ‘any law that requires the citizen to be part of a political party before she can become a presidential candidate is an unnecessary fetter that denies to the citizen the right of direct participation, and amounts to violation’ of Article 13(1) of the ACHPR. In addition, such a requirement in national law of compulsory membership in a party is contrary to the freedom of association guaranteed in Article 10 of the ACHPR. Since then, the ACtHPR has handled a number of cases dealing with electoral issues and political rights, including independent candidates in the above-mentioned Tanganyika Law Society v. Tanzania, freedom of expression in Lohé Issa Konaté v. Burkina Faso in 2014, and the composition and functioning of EMBs in Actions pour la Protection des Droits de l’Homme v Côte d’Ivoire in 2016.
The OAU/AU Declaration of July 2002 is more explicit with regard to the rights and obligations relating to elections, and is also useful for consideration of the commitment to democratic elections in the African context.
The OAU/AU Declaration on the Principles Governing Democratic Elections in Africa (2002)
Adopted at the 38th Ordinary Session of the Organization of African Unity,
8 July 2002, Durban, South Africa
IV. ELECTIONS: RIGHTS AND OBLIGATIONS
The African Charter on Democracy, Elections and Governance (2007-2012), which entered into force in 2012, is the main instrument setting democratic standards across the continent and an important addition to the regional regulation of elections. Its Article 17 specifies the contents of democratic elections and reinforces the normative nature of the above Declaration by re-affirming the commitment of the State Parties to holding regular, transparent, free and fair elections in accordance with the Declaration.
Article 17 African Charter on Democracy, Elections and Governance (2007-2012)
State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa.
To this end, State Parties shall:
Crucially, in the case in the case of Actions pour la Protection des Droits de l’Homme v Côte d’Ivoire in 2016, the Court determined that the 2007 African Charter on Democracy Elections and Governance (ACDEG) and the ECOWAS Protocol on Democracy and Governance were human rights instruments in the meaning of Article 3 of the African Court Protocol, and that therefore it had jurisdiction to interpret and apply them.
In addition, regional economic communities, such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC), initially conceived as economic integration frameworks, have increasingly become actors as regards both election observation and standard setting (see Africa tab).
Within the ECOWAS regional security framework, in 2001 the Member States signed a Protocol on Democracy and Good Governance, supplementary to the protocol that established in 1999 the Mechanism for Conflict Prevention, Management and Resolution, Peacekeeping and Security. The supplementary protocol is considered as a tool which takes into account the deep-rooted political causes of conflict, instability and insecurity.
The mandate of the ECOWAS Community Court of Justice explicitly includes human rights violations in any Member State since the 2005 Supplementary Protocol amending the Protocol relating to the Community Court of Justice, which has also expanded its admissibility rule to include individual petitions. In this context, the Court has handled an increasing number of human rights cases, especially stemming from electoral processes in member States.
In the SADC region, following the adoption in 2003 of the Principles for Election Management, Monitoring and Observation (PEMMO) by the SADC Electoral Commissions Forum together with the regional civil society organisation Electoral Institute for Sustainable Democracy in Africa (EISA), the SADC Parliamentary Forum adopted in 2004 the SADC Principles and Guidelines Governing Democratic Elections, revised in 2015, which has served as a benchmark for election observation in the region, and in 2018 a SADC Model Law on Elections to assist member States in the domestication of the 2015 revised Principles and Guidelines in their internal legal frameworks.
A SADC Tribunal was established under the 1992 SADC Treaty with competence, inter alia, to hear individual complaints on alleged human rights violations. It was inaugurated in 2005 but was suspended in 2010 and disbanded in 2012.
In Asia, to date there are no comprehensive human rights conventions at regional level and consequently no specific regionally expressed right to participation with rules on elections. In case of elections organised in Asia, Article 25 of ICCPR is applicable if a State is a party to it. If this is not the case, a discussion in the electoral area could be developed on the basis of Article 21 of the Universal Declaration. It should also be observed that the OSCE commitments and the CIS conventions with provisions in the area of elections extend themselves to the Central Asian space.
There is, however, a sub-regional human rights declaration, namely the ASEAN Human Rights Declaration of 2012, adopted by the ten members of the Association of the Southeast Asian Nations (ASEAN). The declaration is not legally binding and is not explicitly connected to the mandate of the ASEAN Intergovernmental Commission on Human Rights. In its Article 25, the ASEAN Declaration contains a provision on the right to participation and on the right to vote.
Article 25 of the ASEAN Human Rights Declaration (2012)
(1) Every person who is a citizen of his or her country has the right to participate in the government of his or her country, either directly or through democratically elected representatives, in accordance with national law.
(2) Every citizen has the right to vote in periodic and genuine elections, which should be held by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law.
In addition to not being legally binding, the two paragraphs of the Article make the right to participation and the right to vote dependent on provisions in national law. The Declaration has been criticised for being incomplete and for provisions such as the following: ‘the realization of human rights must be considered in the regional and national context’ (Article 7), which seem to consider human rights with a degree of cultural relativism.
The Arab Charter on Human Rights was concluded within the framework of the League of Arab States (LAS) and entered into force in 2008. The Arab Charter replaced a corresponding document from 1994, which did not receive sufficient support by the Member States. The Arab Charter contains in Article 24 a relatively broad provision concerning participation, which guarantees every citizen a number of specific rights.
Article 24 of the Arab Charter on Human Rights
Every citizen has the right:
The right to freely pursue a political activity is supplemented by the right to freely form and join associations with others and by the right to freedom of association and of peaceful assembly, all of which are important rights, for instance, for the functioning of political parties. In addition, every citizen is guaranteed the right to take part in the conduct of public affairs, directly or through freely chosen representatives and, specifically, the right to stand for election or choose his representatives in free and impartial elections, in conditions of equality among all citizens that guarantee the free expression of his will.
The provision in the Arab Charter seems to be modelled, to a great extent, against the background of Article 25 of ICCPR, although the election elements of Article 25 are not explicitly replicated. This impression is strengthened by the additional right to the opportunity to gain access, on an equal footing with others, to public office in accordance with the principle of equal opportunity. However, Article 24 of the Arab Charter contains a limitation clause similar to those found in the ECHR according to which no restrictions may be placed on the exercise of these rights 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 health or morals or the protection of the rights and freedoms of others. There is no mechanism for considering individual cases.
[1] Manfred Nowak, Introduction to the International Human Rights Regime, MNP, Leiden, 2003, p.76
[2] See also Rafael Rodríguez Castañeda v. Mexico (Comm. No. 2202/2012, CCPR/C/108/D/2202/2012), in which the Human Rights Committee considered the case on the basis of the access to information implied by article 19, para. 2, of the ICCPR and did not find a violation when access to ballot papers was denied by their destruction after elections, because the intention was to guarantee the integrity of the electoral process in a democratic society: ‘This measure was a proportionate restriction by the State party necessary for the protection of public order in accordance with the law and to give effect to electors’ rights, as set forth in article 25 of the Covenant.’
[3] See Young, James and Webster (ECtHR, Jdg. of 13 Aug. 1981, Series A, Vol. 44). However, the case arose in a trade union context.
