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Strengthening International Law to Support Democratic Governance and Genuine Elections

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Strengthening International Law to Support Democratic Governance and Genuine Elections REPORT STRENGTHENING INTERNATIONAL LAW TO SUPPORT DEMOCRATIC GOVERNANCE AND GENUINE ELECTIONS STRENGTHENING INTERNATIONAL LAW TO SUPPORT DEMOCRATIC GOVERNANCE AND GENUINE ELECTIONS EXECUTIVE SUMMARY 06 Democratic Governance 07 Democratic Elections 07 ACKNOWLEDGEMENTS 08 TERMS AND ABBREVIATIONS 09 1. INTRODUCTION 10 2. METHODOLOGY 11 2.1. Step 1: Establishing the Status Quo 11 2.2. Step 2: Identifying Strengths, Gaps, and Ambiguities 12 2.3. Step 3: Conclusion and Recommendations 13 3. DEMOCRATIC GOVERNANCE 13 3.1. Separation of Powers 14 3.2. Constitution Making Processes 18 3.3. Independent Institutions 18 3.4. Empowerment of the Executive During a State of Emergency 19 3.5. Civilian Control of the Security Sector 20 3.6. Transparency 20 3.7. Accountability 21 3.8. Mediators of Vertical Accountability 22 3.9. Rule of Law 24 3.10. Right of Self-determination: A Super-norm Guaranteeing Democratic Governance? 25 4. GENUINE ELECTIONS IN INTERNATIONAL LAW 26 4.1. Genuine Elections that Guarantee the Free Expression of the Will of the Voters 26 4.2. Periodic Elections 27 04 STRENGTHENING INTERNATIONAL LAW TO SUPPORT DEMOCRATIC GOVERNANCE AND GENUINE ELECTIONS “[THE] MAIN COMPONENTS OF DEMOCRACY, I.E. THE RIGHT OF THE PEOPLE TO SOVEREIGNTY, INTERNAL EXECUTIVE SUMMARY SELF-DETERMINATION AND EQUAL PARTICIPATION IN POLITICAL DECISION-MAKING PROCEss TOGETHER WITH THE PROTECTION OF MINORITIES AGAINST TYRANNY OF International law contains a large number of obligations relevant THE MAJORITY, ARE ALREADY PART OF INTERNATIONAL for democratic governance and democratic elections. Contrary LAW OF HUMAN RIGHTS.” to conventional wisdom, these obligations are often detailed and comprehensive. International law guarantees key elements Manfred Nowak1 of democratic governance, such as the separation of powers, accountability, rule of law, and transparency. International law also protects key principles of democratic elections such as universal suffrage, secrecy of the vote, the right to vote and be elected, the right to freely assemble and associate, and, importantly, the right to an election that is “genuine.” This is a remarkably positive finding. Article 25 of the International Covenant on Civil and Political Rights (ICCPR) is the cornerstone of democratic governance and genuine elections in international law. Article 25 explicitly grants the right to take part in the conduct of public affairs and to equal suffrage. Other key elements of democracy derive from article 25, in particular the separation of powers, minimum rights of Parliament, full and effective civilian supervision of the security sector, and transparent and inclusive constitution making processes. The ICCPR and other human rights treaties also guarantee other core elements of a democracy and genuine elections, such as freedoms of association, assembly, and expression, and the independence of the judiciary. Views on individual petitions and General Comments of the United Nations Human Rights Committee (HRC) help interpret relevant norms and provide an authoritative understanding of the obligations States have undertaken to respect democratic governance and 1 Nowak, CCPR Commentary, 565. genuine elections. 06 DEMOCRATIC GOVERNANCE processes, taxing and funding of NGOs, and cooperation with foreign partners and donors. Concerning democratic governance, the main findings of the study include: Right to democracy: International law determines minimum standards on key aspects of democratic governance but it does No over-concentration of powers in the executive: International not establish a stand-alone “right to democracy” per se. This is law prohibits—in general terms—the over-concentration of power largely because the term and concept of democracy is too broad in the executive. Unaccountable decision-making, legislative and too vague to be regulated by a single legal norm. In other powers of unelected institutions, or unfettered executive powers words, a right of democracy does not exist because its scope and of unelected bodies are cases of inadmissible over-concentration content overstretches the regulatory abilities of law, which cannot of powers in the hands of the executive. Powers of government regulate what is inherently vague. Elements defining democracy bodies to issue laws, decrees, and decisions without being are, however, largely guaranteed by international law. subject to independent review are also generally incompatible with international law. A new or revised General Comment on article 25 is recommended: Although international law establishes a number of minimum Minimum rights of Parliament: Under international law, requirements for democratic governance, it is sometimes vague parliaments have the right to supervise the executive and to and ambiguous. While treaty amendments would provide for the legislate without external interference. Case law also supports highest possible degree of legal certainty, they are not required the right of Parliament to adopt national budgets and to organise to close gaps. Given the political difficulties in amending themselves autonomously. Other parliamentary rights such as international human rights treaties, this is good news. Instead, the right to discuss politics are implicit in international law only many of the shortcomings that exist can be addressed through to some extent. In addition, issues such as the delegation of interpretation and reference to HRC decisions. In other instances, legislative powers to the executive, representative composition gaps could be addressed through revised or new General of legislatures, or immunities of parliamentarians are only partly Comments. In particular, an amended General Comment on article covered by international law, if at all. 25 of the ICCPR could address existing gaps and ambiguities. Annex 1 contains a detailed list of recommendations. Constitution making processes: The ICCPR requires State parties to afford citizens an effective opportunity to participate in constitution-making processes. According to the HRC, these DEMOCRATIC ELECTIONS reform processes should be transparent and inclusive. Although common practice in many States, international law does not Concerning democratic elections, the study makes the following require the adoption of a constitution by a qualified majority. conclusions: There is also no obligation for States to put a constitution to referendum or to ensure other specific forms of participation. International law provides fairly detailed guidance on electoral processes: The right to participate in genuine elections is Civilian control of the armed forces: The ICCPR requires State generally well established in international law. The ICCPR and parties to ensure full and effective civilian supervision and to regional instruments as the source of many of these obligations define the competencies of the armed forces in law. It also calls provide a good deal of practical detail. for a degree of transparency. However, international law could play a stronger role in building accountable armed forces by Genuine elections are protected in international law: Article 25 of restricting the military’s mandate—in principle—to defence, or the ICCPR not only lies at the heart of democratic governance, but by requiring that defence budgets be subject to parliamentary also forms the basis of an international legal understanding of oversight. genuine elections. However, genuine elections require more than just the fulfilment of the rights guaranteed by article 25. Elections Transparency: The ICCPR, as interpreted by the HRC, regulates should be competitive, with voters offered a real choice, the votes access to information in some detail. The ICCPR transparency should be counted honestly and accurately, and a number of other regime, however, would benefit from additional guidance on rights, including freedoms of association, assembly, expression, access to government proceedings and grounds for denying and movement; access to information; and security of the person access to information. must also be guaranteed. A new or revised General Comment on article 25 could provide a clear definition of the term ‘genuine Political parties: The ICCPR provides relatively detailed protection elections’ that includes these essential elements. against state interference in the activities of political parties. Restrictions on the registration, operation, or prohibition of a International law implicitly recognizes the electoral cycle: political party must be narrowly constructed and proportionate. International law (principally in the interpretation of the HRC) However, international law would benefit from more explicit implicitly recognizes 12 essential elements of the electoral guidance on key issues such as circumstances in which the process. These include: (1) Legal Framework for Elections; banning of political parties is permissible or requirements on (2) Electoral Systems; (3) Boundary Delimitation; (4) Election internal-party democracy. Management; (5) Voter Registration; (6) Voter Education; (7) Candidacy and Campaigning; (8) Voting Processes; (9) Counting Civil society organisations: The ICCPR contains broad and Tabulation; (10) Dispute Resolution; (11) The Media; and (12) requirements for the registration and free operation of NGOs. Election Observation. This framework, however, would benefit from more detailed guidance on issues such as unhindered operation, fair registration The right to vote and be elected: The rights to vote and to be 07 elected are clearly established in international
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