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.
[i] European
Commission and NEEDS, Compendium, 25.
[ii] European
Commission, Handbook for European
Union Election Observation, 17.
