Experts debate whether constitutions or international treaties have to be seen as the highest norm of a particular legal system. However, a compromise has been reached according to which some topics contained in international treaties, such as the protection of human rights (including political and voting rights which are part of the so-called “second generation” of human rights) have to be included within any nation’s legal system. Otherwise, such a nation can be seen as unconstitutional and undemocratic.

International treaties, which are now mandatory for more and more countries, have promoted and consolidated political and voting rights. Among such treaties are: the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the American Convention on Human Rights (also known as the San Jose Convention), and the Convention on the Political Rights of Women.

International documents are an important source of electoral law. It is impossible to underrate the high number of international covenants, resolutions, charters, declarations and reports related to human rights in general and to political rights in particular. Many important rules are derived from international documents. For instance, every democratic country has to vote the appointment of its representative officials. In the same line of reasoning, international documents enhance the importance of international observers in electoral processes.

In the Compendium of International Standards for Elections, the European Commission proposes a typology based on level of standard (Universal meaning adopted within the UN or regional) and treaty standard (meaning either a treaty binding under international law once ratified or non-treaty standard reflecting statements of international organizations).[i]

International documents are regulated by specialized rules of international law. However, treaties in particular have to be adopted by national constitutions. National constitutions must see international treaties as producers of national laws, as higher regulations, as mandatory norms. Ordinary legislation and regulation have to detail both the content and procedural issues established by international treaties.

According to some rules derived from the Vienna Convention on the Law of Treaties (1969), there are three main principles regulating this topic: a) Every treaty binds the states which approved it; b) No State can be bound by a treaty which has not been approved by it; and c) Convened obligations are based on the consent of the states. 

However, even once ratified, “One of the big challenges of international human rights law is how human rights are enforced and what actions can be taken against a State Party that is not complying.”[ii]  Where a treaty has been ratified then recourse through the national court system is possible.  Internationally, compliance is less straightforward although there are two main options. First, core international human rights treaties have a committee or monitoring body which checks compliance and second, States can choose to recognize the competence of the treaty monitoring committees to receive complaints from individuals.[iii]  In practical terms, there may be significant limits on the effectiveness of compliance.

International treaties are so important in the world that it is very difficult to think of a national rule or constitutional norm (particularly in the field of electoral and political rights) that can oppose them. Democratic constitutional states do recognize and adopt international documents in their internal legal system.