When first considering an election process, it is helpful to begin by identifying the international commitments the concerned State has made, so that its obligations are clear. Such an analysis can take place in advance of an election (considering first and foremost the legal framework, as well as the stages that have already happened, and potential questions of compliance), during an election process (this is what election observation missions do) or retrospectively, after the election has been concluded.
Why use international standards
Assessing an election process is a complex task, requiring consideration of legal, technical, political and contextual factors. Analysis of strengths, problems, potential problems and possible solutions is not an exact science, with judgement needed to identify key issues and potential remedies. However, international standards give some remedy to this in that they contain agreed benchmarks for elections. Such benchmarks can serve as a standardised framework for examination of an election process. Individual skill is still of course required for analysis of how an election meets international standards, and what recommendations are advisable. Therefore, variance in conclusions is still to be expected, but the use of international standards means that at least the goals are explicit and agreed upon, and subjective interpretation is minimised.
Using international standards is necessary for assessing an election process for the following reasons:
Political rights are established in documents of legal or political nature that list the constituent elements of democratic elections (the ‘standards’). These documents, be they legally binding treaties or political declarations, provide definitions of the key principles (for example: universality, equality, secrecy, genuineness, fairness) necessary to make an election democratic.
The rules of the game are known to all and agreed in advance. This enables stakeholders to know how to develop an election process and how an election will be assessed. All those involved in the election have the same reference points.
Conclusions are likely to be more comprehensive, reliable and useful. There is less subjectivity, and therefore less risk of personal misjudgements or omissions.
There is likely to be greater acceptance of conclusions and recommendations. There is reduced risk of an election analysis being interpreted as foreign interference if reference is made to international standards, particularly those contained in treaties and agreements to which the country has explicitly committed to.
Conclusions on an election process can be more easily considered by human rights courts and treaty monitoring bodies. Reports that make explicit reference to obligations contained in a treaty or agreement can be more easily referenced by bodies that are responsible for assessing compliance, as well as others who are interested.
How to prepare for using international standards
Referring to international standards can seem daunting, particularly for non-lawyers. However, explanations and reference materials are easily accessible.
Read the content of the first tab of this Compendium (International Human Rights Norms and the Right to Participation through Elections). It explains the framework of international standards and the weight that different types of instruments and documents have.
Read the content of the various tabs in the Compendium, which includes the key universal and regional texts. Of particular importance are ICCPR Article 25 and accompanying General Comment 25.
Identifying relevant international standards when looking at an election
Look up the country you are interested in and find out what commitments it has made so that you know the legally and politically binding commitments the country has made that therefore you should be referring to in your analysis. You can check the ratification status online by following the links provided on this platform, to see if the country you are interested in has signed a treaty. Read the relevant parts of the applicable treaties. The various human rights treaties agree on the essential principles, some may put a stronger emphasis on particular aspects of an election process, for example, the ACDEG insists on the independence of the election administration.
The content of the tab ‘Areas of assessment’ should be considered when looking at an election process. It links each area of assessment to key treaty standards (as stipulated in the ICCPR and other treaties) and key non-treaty standards (authoritative general comments/recommendations, UDHR and UN General Assembly resolutions). This provides EU mission members with guidance regarding what standards should be considered as the basis of assessment for specific aspects of the election process. It should also be useful when drafting recommendations, as these should be based on international standards.
Referring to international standards in analysis
When referring to international standards it is important to remember a few points:
The reasons for non-compliance are critical, with careful assessment needed of aggravating and mitigating factors. Even when there are mitigating circumstances, it is important to still identify shortcomings in an election so there is clarity about where further development is needed.
|
|
|
|
|
|
|
|
Simply saying that an election ‘did not meet international standards’ is not helpful and does not make an assessment more credible. Instead, spell out the relevant obligation(s) and cite the reference. For example ‘the legislation falls short of a number of international obligations, including in relation to freedom of expression (ICCPR Article 19) and the right to universal and equal suffrage (African Charter on Democracy, Elections and Governance Article 4 and ICCPR Article 25).’
For example: ‘the shortcomings in the voter registration process resulted in a failure to provide for universal and equal suffrage as required under Article 25 of ICCPR (ratified by X country on X date).’
If the concerned State has not signed up to any legally binding treaty, the UDHR may still be referred to. In addition, the comments of the UN Human Rights Committee (particularly General Comment 25) can still be relevant and valid as the ICCPR is an elaboration of the rights contained in the UDHR. References may also be made to political agreements the concerned State has chosen to sign up to. UN General Assembly resolutions have a normative persuasive value, the significance of which is increased if the concerned State voted in favour of the relevant resolution.
If the concerned State has not signed up to a treaty, it has no obligation to the standards contained in the treaty. However the treaty may still be referred to, not as an obligation but as an example of practice undertaken by other States. In such a case, a footnote could be added clearly specifying that the state has not committed to the international instrument mentioned. A recommendation can also be made that a State sign up to a treaty or political agreement.
Good practice corresponds to actual practice of States, which has been assessed to be effective in achieving elections that meet international standards and has been codified. However a set of good practice is not a document to which States subscribe, therefore there is no obligation by a State to implement any particular good practice.
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.
Decisions reached in electoral matters by regional human rights courts (essentially the ECtHR, the ACtHPR, the IACtHR and the ECOWAS CC) determine when a State party has been in breach of an electoral principle, and in doing so define the substantive content of these principles. For example, the ECHR has defined that a voting ban on all people serving a prison sentence violated ‘universal suffrage’, but that the exclusion of non-resident citizens did not. Strictly speaking, a decision of a human rights court is only binding for the responding State; however other States parties have an interest in appraising their legislation in light of it, in order to avoid being subsequently found in breach. EODS has developed a database of international election-related case-law.
The UPR is essentially a cyclical peer review process in which States declare to other States the steps they are taking to foster human rights in their country. The process involves several stages, inter alia a report by the OHCHR compiling information from treaty bodies and observations by the State, submissions by stakeholders (NGOs, national HR Bodies), and a national report. Of particular interest is the outcome of the review in the Report of the Working Group, specifically the recommendations which the State under review has agreed to support. These can be referred to in support of EOM recommendations.
|
How to use international standards in election observation work Preparation Understand the human rights framework (First Tab, Right to Participation in Public Affairs) and read the relevant treaties and political commitments. Identifying relevant international and regional standards
Referring to international standards Identify areas of non-compliance and distinguish which of these are most serious. Make sure references to international standards are specific. Where possible, refer to regional standards as well as universal standards. Be explicit in identifying which international standards are legally binding - these are more powerful as the State has chosen to commit to these obligations. |
