Time for the Human Rights Council to strengthen its focus on democracy and free and fair elections

by Marc Limon, Executive Director of the Universal Rights Group Bajo la lupa: democracia, Blog, Blog

16 November 2020, Geneva

US diplomats are said to be horrified by the refusal of President Donald Trump, and senior Republicans from inside and outside the administration, to recognise the results of the 3 November 2020 presidential elections, their refusal to sign off on – for the moment – a smooth transition, and, more broadly, their efforts to sow doubts about the integrity of the polls. They were particularly alarmed when their own boss, US Secretary of State Mike Pompeo, told reporters there would be a smooth transition, but only to a ‘second Trump administration.’ The reason US diplomats are so concerned is that, for decades, it has been a key part of their job to urge politicians in Africa, Asia and elsewhere, to accept the results of democratic polls and to ensure a smooth transition from one government to another.

At a personal level, they may also be shocked that this could happen in the United States of America, one of the world’s oldest and most secure democracies. But they shouldn’t be. Organising elections that are free and fair, and – equally importantly – are seen to be free and fair by voters (i.e. are credible), is extremely difficult. Even in mature democracies like America’s, politicians will sometimes come along who want to game the system to increase their chances of winning or to avoid giving up power. In newer democracies, countries in transition, or States with weak rule of law systems, the risks are much higher. If electoral laws and systems (e.g. election commissions, independent judiciaries) are insufficiently robust, such gaming can easily lead to stolen elections, popular distrust in the results, and, in some cases, a rapid deterioration in the human rights and security situation in the country.

Such risks and threats to the enjoyment of civil and political rights are equally relevant to the broader issue of representational or ‘liberal’ democracy. The UK offers a case in point. Like the US, long thought of as a bastion of liberal democracy and rule of law, since the 2016 Brexit referendum the Conservative Government, citing the ‘will of the people’ has slowly but inexorably chipped away at each of the central pillars of democracy: lying and disinformation have become routine, judges have been labelled as ‘the enemies of the people,’ lawyers have been branded ‘lefty do-gooders’ for defending the rights of migrants, parliament has been illegally prorogued, evidence of interference (domestic and foreign) in democratic plebiscites has been covered-up or ignored, corruption and cronyism have become widespread, and the UK’s international legal obligations have been openly flouted.

It is thus clear that all countries, to greater or lesser extents, and irrespective of their level of development or democratic history, face significant challenges in the interlinked areas of human rights, democracy and elections. All countries have room for improvement in building their democratic and electoral resilience by strengthening the promotion and protection of civil and political rights. If they should fail to do so, and if the international community were to turn a blind eye to this challenge or otherwise fail to support them, then the results can be – and indeed, often are – catastrophic for the stability, security and sustainable development relevant UN member States.

Rallying the world’s democracies  

Fortunately, this point has not been lost on US President-elect Joe Biden. As long ago as July last year, before he was even selected as the Democratic Party’s presidential candidate, he delivered a speech at the City University of New York in which he laid out his blueprint for American foreign policy should he be elected. In it, he made a strong pitch to position the promotion and strengthening of democracy and free and fair elections, especially through the improved enjoyment of human rights, as a central goal of US foreign policy (at both bilateral and multilateral levels).

‘Democracy,’ he argued, ‘is the root of our society, the wellspring of our power, and the source of our renewal. It strengthens and amplifies our leadership to keep us safe in the world. It is the engine of our ingenuity that drives our economic prosperity. It is the heart of who we are and how we see the world – and how the world sees us.’

Interestingly, the former Vice President offered a wide vision of ‘democracy’ and the human rights involved in building strong and resilient democratic societies (involving not just civil and political, but also economic and social rights). This includes, he argued: building inclusive education systems ‘so that a child’s opportunity in life isn’t determined by their zip code or race,’ reforming criminal justice systems ‘to eliminate inequitable disparities,’ and ‘instituting strict conflict-of-interest and anti-corruption policies’ to eliminate ‘self-dealing.’ Notwithstanding this broad vision, Biden nonetheless used his speech to underscore the central importance of free, fair and credible elections to any functioning and stable democracy. For example, he spoke of the importance of ‘fully protecting voting rights,’ especially of minorities, of ‘seeking greater transparency in campaign finance […] so money, foreign and domestic, [does not] pollute […] politics,’ and ‘dedicating greater resources, including cyber resources, to defending […] election systems.’

With this broad democratic vision in mind, and building from the base of a renewed commitment to democracy, human rights and rule of law at home, Biden used his speech to revitalise America’s ‘commitment to advancing human rights and democracy around the world.’ Perhaps most eye-catchingly, he said that: ‘Having taken […] steps to reinforce the democratic foundation of our country and inspire action in others, [we] will organize and host a global Summit for Democracy to renew the spirit and shared purpose of the nations of the Free World.’ Accordingly, and during his first year in office, Biden promised to ‘bring together the world’s democracies to strengthen our democratic institutions, honestly confront the challenge of nations that are backsliding, and forge a common agenda to address threats to our common values.’

The Summit, he said, would prioritise results by securing new country commitments in three areas: (1) fighting corruption; (2) defending against authoritarianism, including election security; (3) advancing human rights in their own nations and abroad. It would involve and include civil society organisations from around the world, organisations, he said, ‘that stand on the frontlines in defence of our democracies.’ Moreover, the Summit would ‘issue a Call to Action for the private sector, including technology corporations and social media giants, to make their own commitments, recognizing their responsibilities and their overwhelming interest in preserving open, democratic societies and protecting free speech.’

Finally, reiterating his view that the world must pay far greater attention to expanding and defending the integrity of free and fair elections, Biden spoke of the importance of initiatives such as the ‘Trans-Atlantic Commission on Election Integrity’ (of which he is a founding member), ‘to lead the fight back against Russia’s attacks on Western democracies.’ ‘The Commission,’ he noted, ‘has asked politicians across Europe to sign a pledge committing to transparency in campaign finance and to reject the use of fabricated or hacked material.’

‘Working together,’ the now President-elect concluded, ‘democracies can and must confront the rise of populists, nationalists, and demagogues; the growing strength of autocratic powers and their efforts to divide and manipulate democracies; and the threats unique to our time, including the renewed threat of nuclear war, mass migration, the disruptive impact of new technologies, and climate change.’

Free and fair elections and human rights

Free and fair elections are crucial to the enjoyment of all human rights, especially civil and political rights. Where a country is able to hold elections that are, and are seen to be (by the people), free and fair, democracy can take root and all human rights have the opportunity to flourish. Where an election is stolen, or where significant parts of the population do not trust the outcome, it can seriously undermine democracy or even lead, in the medium-term, to gross and systematic human rights violations.

The right to take part in the conduct of public affairs, including the right to vote and to stand for election, is at the core of democratic governments based on the will of the people. Genuine elections are thus a necessary and fundamental component of an environment that protects and promotes human rights.

UN support for free and fair elections

Notwithstanding, neither the Council nor OHCHR have ever focused on the issue of ‘free and fair elections’ to any significant extent.

It is surprising that the issue of ‘free and fair elections’ has never been the focus of explicit attention at the Human Rights Council (nor at the Council’s predecessor, the Commission on Human Rights). Indeed, in 2000, UN member States did draw attention to this anomaly: as part of a review of the work of the Commission, States noted three main normative/thematic gaps: freedom of assembly and association; contemporary forms of slavery; and human rights and elections. After the creation of the Council in 2006, the first two of these issues were taken up – by the US and the UK respectively. The issue of human rights and election never has been.

OHCHR, for its part, has done some work (on its own initiative, and in cooperation with the Carter Center) on ‘human rights and election standards,’ designed to build stronger ties between human rights mechanisms and the international election observation and assistance communities. As a result of the joint initiative, a Plan of Action on Human Rights and Elections Standards was developed. This provides ideas on how to increase cooperation between the human rights and the electoral observation communities and on how to advance a human rights-based approach to elections.

OHCHR also undertakes some limited work in the field, via UN Country Teams, to ensure that elections meet international human rights standards and that they are held in an environment in which all are able to exercise their fundamental rights. To do so, it deploys an array of methods from its headquarters and field locations, which include advocacy, the provision of technical assistance, monitoring of human rights in the electoral context, and public or confidential reporting.

In 2002, the former Commission on Human Rights adopted a landmark resolution (2002/46) on human rights, democracy and rule of law. This was later elaborated by Human Rights Council resolution 19/36. The Council’s text stated that democracy includes respect for all human rights and fundamental freedoms including, inter alia, freedom of association and assembly, freedom of expression and opinion, the right to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote in a pluralistic system of political parties and organisations and to be elected at genuine, periodic, free and fair elections by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the people. The Council’s text, like the Commission’s before it, thus recognises that (as noted by OHCHR in report HRC/22/29 to the Council) ‘democracy is not confined to the organisation of democratic elections.’ Notwithstanding this truth, OHCHR and the Council, like Joe Biden, do acknowledge that free and fair polls are ‘central’[1] to democracy. It thus remains surprising relevant Council’s resolutions (e.g. 19/36, 8/14) have not, thus far, focused specifically on the issue of free and fair elections per se.

This is clearly an important omission, at both a normative and a practical level.

Human rights normative gap

Regarding the former, the question of what, precisely, constitutes a ‘free and fair’ election is obviously a fundamental one. Yet it is a question that has never been answered by the UN’s apex human rights body – the Human Rights Council (nor the Commission before it). This has created a normative lacuna, allowing some States to hold national polls that clearly do not fully respect human rights and yet claim the elections were ‘free and fair’ and, in other cases, leaving countries in democratic transition to establish necessary laws, institutions and practices on their own, and without international support or guidance.

It is thus important that the Council moves to fill this normative gap. In doing so, it should rely on the civil and political rights obligations clearly set out in the international treaties, and on the existing work of the UN human rights Treaty Bodies.

The interdependence between democracy and human rights, including the role of elections, is clearly established in several international human rights instruments, notably the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. The Universal Declaration states, in article 21, that ‘(a) everyone has the right to take part in the government of his country, directly or through freely chosen representatives; (b) everyone has the right of equal access to public service in his country; (c) the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ These same basic norms are reflected in article 25 of the ICCPR.

These broad norms have been further elaborated by the Treaty Bodies. For example, the Human Rights Committee, in its general comment No. 25 (1996), makes clear that, inter alia:

  • Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.
  • Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.
  • In the context of the rights protected by article 25, no distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  • Elections must be conducted fairly and freely on a periodic basis within a framework of laws guaranteeing the effective exercise of voting rights.
  • The principle of one person, one vote, must apply, and within the framework of each State’s electoral system, the vote of one elector should be equal to the vote of another.
  • Free and fair elections must be held at intervals which are not unduly long, and which ensure that the authority of government continues to be based on the free expression of the will of electors.
  • The results of genuine elections should be respected and implemented.
  • An independent electoral authority should be established to supervise the electoral process and ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant.
  • Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria. For example, it may be reasonable to require a higher age for election or appointment to particular offices than for exercising the right to vote, which should be available to every adult citizen.
  • The right to take part in the conduct of public affairs is supported by other rights such as those to freedom of expression, assembly and association.
  • States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced.
  • Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined, or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party.

Practical implementation/realisation gap

In addition to the important human rights normative gap relating to free and fair elections, which the Human Rights Council, as the UN’s main intergovernmental body responsible for human rights is ideally placed to fill, there also exists an important gap in available support to States to help them realise those norms and thus hold regular, free, fair and credible elections. As noted above, this gap is especially important in the context of newly democratic States and/or countries in transition.

The UN is, of course, already involved in supporting democratic elections around the world. However, this is fairly limited, and is mainly focused on monitoring elections rather than the longer-term (and more important) challenge of building a country’s election-human rights capacity.

For example, the Security Council and General Assembly (GA) can decide to provide a State with electoral assistance, but this only happens upon the request of the State concerned and requires the adoption of a resolution (which gives the UN a mandate to provide assistance). The GA has reaffirmed on many occasions that assistance should be carried out in an objective, impartial, neutral and independent manner, with due respect for sovereignty, while recognising that the responsibility for organising elections lies with member States. At the UN, this work is led by the Under-Secretary-General for Political Affairs – the main focal point for electoral assistance matters. The Under-Secretary-General is responsible for receiving requests for support, setting electoral assistance policies, deciding on the parameters for UN electoral assistance in a particular requesting country, and maintaining the single electoral roster of experts who can be rapidly deployed when required. The focal point is supported in this regard by the Electoral Assistance Division of the Department of Political Affairs (DPA) of the UN secretariat.

However, according to a number of experts at a December 2017 joint meeting of OHCHR and the Carter Center, UN election support to States, via the focal point and the DPA, is both ad hoc (it depends on States approaching the UN secretariat, and on the UN deciding a mission would be worthwhile), limited (only 100 assistance programmes in 19 years – around five per year), and mainly focused on election monitoring/observation. On the last point, the inadequacy of principally focusing on election monitoring during a limited period before, during and after the vote, was raised by a number of speakers. ‘Whether an election will be free and fair, and whether the people will have faith in the outcome, is decided long before (months and years) the date of the actual poll,’ said one. ‘That is the period where the UN should focus its attention – and provide long-term technical assistance.’

To some degree, this gap is bridged by another part of the UN – the UN Development Program (UNDP). UNDP works with States, and in partnership with the Electoral Assistance Division and other global, regional and country level partners, to increase the capacity of national electoral commissions and other actors responsible for organising credible and inclusive elections. UNDP’s work in this area includes supporting national efforts for electoral (legal) reform; establishing electoral commissions; planning, monitoring and budgeting; supporting voter and civic education; promoting women’s participation as voters and candidates; and encouraging the political participation of marginalised groups.

Much of this work is, of course, human rights work – premised on supporting States with the implementation of their international human rights obligations under article 25 of the ICCPR, as well as relevant articles of other treaties (e.g. CEDAW). Therefore, as with the elaboration of human rights norms as they pertain to ‘free and fair elections,’ there is again a clear need for the Human Rights Council, as the UN’s main human rights body, to be involved in the delivery of human rights technical assistance and capacity-building support where it is designed to help States, particularly developing States, strengthen electoral laws, build strong and independent electoral commissions, promote the participation of women, and support voter and civic education. Moreover, there are important contemporary human rights-related challenges with the organisation and conduct of democratic elections, such as voter suppression, online campaigning and voter manipulation, corruption and vote-buying, and hate speech and ‘fake news,’ that neither UNDP nor the Electoral Assistance Division are able or mandated to address. It is important, if the international community is to push back against a perceived global ‘backsliding’ on human rights and democracy, that the Human Rights Council and its mechanisms (including, perhaps a new Special Procedures mechanism on elections) fill this important practical gap.

[1] Report HRC/22/29

Featured photo: Nehal El-Sherif, A woman casting her ballot in al-Mahalla city, May 23, 2012, Flickr.

Photo in text: By @visuals ,on unsplash

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