Dissatisfaction with “free and fair” and the need for a more
systematic framework suited to the rigorous observation of all aspects of the
electoral process led to the emergence of a new methodological paradigm. State
obligations under public international law had underpinned the values of
observers from the start but were not articulated as a comprehensive assessment
framework. The establishment of the Declaration of Principles community in 2005
and Global Network of Domestic Election Observers in 2009 have helped
observation organizations, international and domestic, further coalesce around
an approach palatable to states themselves and which enables observers to make
specific, compelling arguments regarding the fulfillment of universal human
rights in the electoral process.
Public international law includes treaties, judicial
decisions, political commitments, and other sources of best practice. U.N.
treaties are the starting point for obligations-based frameworks because they
are instruments that countries around the world have voluntarily agreed to
uphold through ratification. Examples include the ICCPR and the International
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW). Where applicable, regional treaties such as the African Union’s
African Charter on Human and Peoples’ Rights and the Council of Europe’s
Convention for the Protection of Human Rights and Fundamental Freedoms are also
important and may grant a greater degree of contextual specificity to
obligations.
Treaties address rights and freedoms broadly but often lack
detail that can help interpret how they should be applied in practice. In
addition, new standards evolve that are not immediately codified in binding
treaties. Interpretive documents, which include judicial decisions by
intergovernmental courts (e.g., International Court of Justice, Inter-American
Court Human Rights) and General Comments issued by treaty-monitoring bodies
(e.g., U.N. Human Rights Committee), explain the intent of treaty principles. Political
commitments are non-binding instruments that provide evidence of emerging
norms. Examples include The Organization of American States’ (OAS)
Inter-American Democratic Charter and the African Unions’ (AU) Declaration on
the Principles Governing Democratic Elections in Africa. Finally, handbooks and
other works of established experts (e.g., EU Handbook for European Union
Election Observation or Norwegian Helsinki Committee’s Manual on Human Rights
Monitoring) provide evidence of best state practices and are often cited in
international court decisions.
The Office for Democratic Institutions and Human Rights
(ODIHR), for example, which observes in Organization for Security and
Cooperation in Europe (OSCE) member states, cites as its primary benchmark the
1990 Copenhagen Document, a political commitment that outlines standards for
democratic elections in the OSCE and enshrines the role of observers in helping
to uphold those standards. ODIHR’s framework, outlined in its Election
Observation Handbook, also incorporates universal human rights instruments,
including the UDHR, ICCPR, CEDAW, and the Convention on the Elimination of All
Forms of Racial Discrimination (CERD). Human rights instruments of other
regional bodies to which OSCE member states have acceded are also applied, such
as the rulings of the European Court of Human Rights. The Handbook also
acknowledges the value of non-binding documents that may be used for “providing
guidance to participating States” and which “provide examples of how international
or regional obligations might be carried out.”[i]
Observers are often asked how national law fits into an
obligations-based assessment framework. Analysis of a country’s legal framework
for elections and the conditions it provides for democratic governance is a
crucial part of any mission. On one hand, observers do assess the extent to
which laws are implemented during the electoral process. On the other, while
ratification of a treaty commits a state to take the necessary steps to
harmonize national law with its principles, this does not always occur. Some
countries include in their constitutional framework a provision for
automatically adopting international treaties as national law upon
ratification; others make the legislature responsible for passing the
appropriate legislation. In evaluating national laws then observers should, and
typically do, highlight places where national law can be improved to bring it
into alignment with a country’s international obligations.
[i]
OSCE/ODIHR, Election Observation Handbook, Sixth Edition (Warsaw: OSCE Office
of Democratic Institutions and Human Rights, 2010), 17-21,
http://www.osce.org/odihr/elections/68439?download=true.
