Elections, international law and United Nations

If we consider the Peace Treaties of Westphalia's notion of sovereignty, then the electoral procedure or free and fair election of a country is not a matter of international concern. However, the rise of the international human rights law and the practice of promoting democracy by international organisations significantly affect the notion of sovereignty. 

We cannot ignore the connection between a country's democratic structure and the state of human rights. As the Inter-American Commission on Human Rights (IACHR) had observed in the case of Walter Humberto Vásquez Vejarano v Perú stating, "a democratic structure is an essential element for the establishment of a political society where human rights can be fully realised".

The mechanism of the democratic structure is indispensable as it creates the relationship between citizens and their representatives. A proper link could be established between these two sides if the mechanism assures free and fair electoral participation of a country's citizens. 

What else can be ensured by this electoral participation is 'achieving legitimacy of the government among the community of states'. Without a proper electoral process and establishing the principle of representative democracy, it is impracticable for a government to achieve such legitimacy.

In this circumstance, two pertinent questions could arise: whether the free and fair election or electoral procedure of a country should be considered an internal matter of a country? Furthermore, how can the United Nations (UN) as an international organisation get involved in the electoral procedure of a nation as the general perception is entirely an internal issue? 

A straightforward answer to those questions would be pretty difficult, although having a discussion could give us an idea about the whole scenario.
 
The principle of representative democracy or the right of everyone to participate in the government of his/her country was evidently established by Article 21 of the Universal Declaration of Human Rights (UDHR). 

Consequently, if a country holds a free and fair electoral process, it can be considered a big step towards establishing representative democracy, leading a country en route to achieving legitimacy among the community of states.

In the book "Free and Fair Election" Professor Guy S. Goodwin-Gill claims that international law obligates the states regarding elections through combining elements of the obligation of conduct and result. He also put emphasis on the obligation of conduct as he thinks, "states undertake to achieve a specific goal, but enjoy a substantial choice of means in determining which path they will follow to reach the internationally required objective". 

The fulfilment of the obligation of conduct depends on the method or approach chosen for implementation, and the things really occur in practice.

Another aspect of this discussion is the modern concept of self-determination, which was established or emerged in the anti-colonialist approach of the UN. We can mark it as external aspects of this concept. 

Let us consider Article 1 of the both International Covenants on Civil and Political Rights (ICCPR) and International Covenants on Economic, Social and Cultural Rights (ICESCR). It clearly illustrates that the member states have acknowledged a broader field of application for the principle of self-determination.
 

A free and fair election is a big step towards establishing representative democracy. Photo: Reuters

Many commentators like Jurist Antonio Cassese explain this Article and found "internal" or "political self-determination" as meaning that a citizen in a sovereign country should have the power to elect and keep the government of its choice. 

Consequently, the principle of self-determination can be read as affirming the equivalent objective, as is echoed in the principle of free and fair elections that the choice or desire of the people shall be the basis of the government.

Article 25 of ICCPR enshrines a right for every citizen "to vote and to be elected at genuine periodic elections … guaranteeing the free expression of the will of the electors." The UN Human Rights Committee was entrusted to interpret the ICCPR. Its General Comment no. 25 said this article entails, among other things, access to a free press, freedom of association, the right to form political parties, and access to judicial review. 

Several regional legal instruments further amplify this norm, such as Article 3 of the First Protocol of the European Convention on Human Rights, Article 23 of the American Convention on Human Rights, and Article 13 of the African Charter on Human and Peoples' Rights.

No doubt, by augmenting this norm through regional instruments, international law is trying to ascertain the political participation or election in a country, but certainly, this is not the only criterion to establish democracy. The UN is also always making a direct effort in establishing democracy through elections. 

As a result, the UN started to provide support in the aspect of democratic processes in member states that exclusively call for its assistance. It was an idea of Boutros Boutros-Ghali who was the sixth Secretary-General of the UN. He claimed that electoral assistance in the member states should not violate article 2(7) of the UN Charter.

The UN as an international organisation has provided various types of electoral assistance for its members, including organising and conducting elections, election monitoring, and technical assistance. 

For instance, the UN offered electoral assistance to 65 member states from August 2013 to August 2015. The UN has recently governed elections in Kosovo, Cambodia, East Timor, and Eastern Slavonia as well as deployed a three-member expert panel to follow Algeria's April 2014 presidential elections. 

In 1992, Professor Thomas M. Franck observed, "We are not there yet, but we can see the outlines of this new world in which citizens of each state will look to international law and organisation to guarantee their democratic entitlement". I think the words of Franck are prophetic as we can see the operational and promotional practice of international organisations. 

Nevertheless, this is so unfortunate that ICCPR, ICESCR and other regional conventions invite genuine and periodic elections that indicate a right to political participation but fail to crystallise a worldwide right to democracy.

Fahad Bin Siddique is a Student of LLM at UNESCO Madanjeet Singh South Asian Institute of Advanced Legal and Human Rights Studies (UMSAILS), Dhaka, Bangladesh. 

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.