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Tim WoodDeterring Partisan Electoral Misconduct by Elaborating International Human Rights Obligations of Political Parties (adapted from my article in the Cambridge Journal of International and Comparative Law (2)3)
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Introduction
Conventional wisdom holds states, international organizations and occasionally individuals to be
subjects of international law, with debate ongoing whether corporations and rebel groups can be
said to have international human rights obligations.1 Political parties have not figured in this
debate, yet of all non-state actors they are arguably the most natural bearers of international
obligations. When in power, they span the very divide between public and private spheres which
has historically determined the scope of application of human rights law.2 Even in opposition,
political parties have the capacity to foster or thwart individuals’ participation in governance and,
with it, their dignity and human rights.3 Reflecting this centrality to democracy, they are
increasingly addressed by diverse international instruments and bodies, both in respect of the
process of campaigning and the substance of policy positions. This paper canvasses those
instances and argues in support of international human rights obligations for political parties.
Political Parties and Electoral Misconduct
At the outset, the nature of political parties and of the misconduct in which they sometimes
engage will be examined by comparison with analogous phenomena more familiar to
international law: rebel groups and armed conflict, respectively. In the process, characteristics
making it impractical to impose international obligations on rebel groups will be seen not to bear
on political parties.
The distinction between rebel groups and political parties is admittedly nebulous in societies
experiencing or emerging from insurrection or civil war. Hizbullah in Lebanon, the People’s
Liberation Movement in South Sudan, Hizb-e Islami in Afghanistan and the People’s Front of
1 Jan Klabbers, (I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors, in Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi 352 (Jarna Petman & Jan Klabbers eds., 2003). See also Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups, 6 J. Int'l Crim. Just. 899 (2008) [Clapham].2 Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l. L. 51, 79 (1992) [Franck 1992]. See also Nigel Rodley, Can Armed Opposition Groups Violate Human Rights? in Human Rights in the Twenty-first Century: A Global Challenge 297, 299 (for a view of human rights as “rules applicable to the relations between governments and governed”) (Kathleen E. Mahoney & Paul Mahoney eds., 1993) [Rodley]. 3 Accord Boutros Boutros-Ghali, An Agenda for Democratization 15, 22, 27, UN Doc. DPI/1867 (1996) [Boutros-Ghali].
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Liberation Tigers in Sri Lanka exemplify the “continuum” along which political parties and rebel
groups may be arrayed.4 Admonishing the latter group on behalf of the United Nations,
Professor Philip Alston warned that the Tamil Tigers’ conduct would be evaluated against
international standards by virtue of the fact that they “aspire to represent a people before the
world”.5 While conceding the theoretical relevance of such an aspiration in holding non-state
actors to international obligations, Rodley has argued that in fact many rebel groups “aspire
merely to impede government or draw attention to perceived injustice”.6 Undoubtedly the
objectives of rebel groups vary, but they remain fundamentally military in nature: even when
engaged in political activities, these tend to be instruments of or pretexts for an essentially
military purpose.7 Whereas political parties are by definition “associations…one of the aims of
which is to participate in the management of public affairs”.8 Unlike armed groups,9 political
parties’ core vocation will, in democratic systems, be legitimate, legal and inherently laudable,
furthering the “internal” aspect of self-determination: that is, a people’s right to choose its
political regime.10
Since the late 1990s, the overwhelming majority of states have been genuinely, pluralistically
democratic.11 Political parties’ legitimacy and legality is attested to by the registration
formalities imposed on them across jurisdictions: from submitting lists of nominating citizens (in
Georgia and Malawi) or nominated candidates (in Madagascar and Benin) to paying a fee (in
Tajikistan and the US) and having offices across a prescribed number of federated subdivisions
4 Jeroen de Zeeuw, Understanding the Political Transformation of Rebel Movements, in From Soldiers to Politicians: Transforming Rebel Movements After Civil War 17, 18 (J. de Zeeuw ed., 2008) [de Zeeuw].5 UN Economic and Social Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Mission to Sri Lanka, para. 27, UN Doc. E/CN.4/2006/53/Add.5 (2006) [Alston]. 6 Rodley, supra note 3, at 301. 7 De Zeeuw, supra note 5, at 7, 17, 18.8 European Commission for Democracy through Law (Venice Commission), Guidelines and Report on the Finances of Political Parties 2 (2001) [Venice Commission]; De Zeeuw, supra note 5, at 5. See also Krishna Kumar, Reflections on international political party assistance, 12 Democratization 505, 505 (2005) (“The term ‘political party’ is used in its most generic sense indicating a group of citizens that are organized to seek and exercise power in a political system.”) [Kumar].9 Clapham, supra note 2, at 920.10 Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections 79 (1994) [Beigbeder].11 Thomas M. Franck, Legitimacy and the Democratic Entitlement, in Democratic Governance and International Law 27-28 (Gregory H. Fox & Brad R. Roth eds., 2000) [Franck 2000].
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(in Afghanistan).12 Unlike rebel groups, their status in domestic law is well-established and not
intrinsically controversial.13 Having duly registered, parties are capable of being dissolved or
stripped of that status14 by authorities on ostensibly principled grounds such as encouragement of
crime (as in Turkey and Bosnia and Herzegovina).15 Finally, political parties’ activities tend to
be thoroughly regulated by authorities, who define campaign periods, limit the sources or
amounts of campaign contributions, provide public funding, and ensure equal media access.16
Whereas these regulations may be backed by holding political parties to account for assets, rebel
groups generally do not hold assets in their names.17
The question of political parties’ human rights obligations will ordinarily arise in the vicinity of
elections.18 To be sure, elections are not the only means or measure of participative governance:
indeed, they are an indirect and, in some cases, formalistic mode of participation.19 But elections
provide for participation by the greatest number and most diverse range of citizens, and serve as
an “essential framework” for more direct participative modes.20 More to the point, elections are
the most regularly contentious form of participation, with electoral misconduct ranging from
non-violent acts (inflammatory campaign language, inflammatory platforms, and fraud such as
vote-buying and ballot- or count-tampering) to outright violence (intimidation of opposing
candidates or supporters through property damage, harassment, and physical harm possibly
rising to international criminal levels).21 In so far as political parties can be said to have
12 European Union, Handbook for Election Observation (2nd ed., 2009) 46 [EU EOM Handbook]; ACE Electoral Knowledge Network, Registration requirements for parties (Chamber 1), http://aceproject.org/epic-en/CDTable?question=PC001&view=country&set_language=en [Electoral Knowledge Network]; International Crisis Group, Afghanistan’s Parties in Transition 6 (2013).13 Contrast Theodor Meron, Human Rights in Internal Strife: Their International Protection 36 (1987) (noting the “political or legal inconvenience” associated with imposing duties on rebel groups) [Meron].14 Contrast Clapham, supra note 2, at 924.15 European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures 17 (2000).16 Henry J. Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77, 110 (1988) [Steiner].17 Venice Commission, supra note 10, at 13, 14; Clapham, supra note 2, at 920.18 Beigbeder, supra note 11, at 33. See also Kumar, supra note 10, at 505-506. 19 Steven Wheatley, Democracy in International Law: A European Perspective, 51 Int’l. & Comp. L.Q. 225, 246 (2002) [Wheatley]; Steiner, supra note 18, at 103. 20 Steiner, supra note 18, at 100; Gregory H. Fox, The Right to Political Participation in International Law, in Democratic Governance and International Law 49 (Gregory H. Fox & Brad R. Roth eds., 2000) [Fox].21 Accord United Communist Party of Turkey v. Turkey, App. No. 19392/92, para. 23 (Eur. Ct. H.R. 30 January 1998) [Communist Party of Turkey]. See also Franklin Oduro, Lessons from Ghana, in Voting in Fear: Electoral Violence in Sub-Saharan Africa 209, 218 (D. Bekoe ed., 2011).
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international obligations not to interfere with opponents’ human rights, these are the likely forms
their violation will take.
Even at its most violent, however, the objectives, timing, perpetrators and victims22 of electoral
misconduct distinguish it from the armed conflict engaged in by rebel groups. Qualitatively,
electoral violence remains a “deviant form” of political participation rather than a rejection of or
alternative to politics.23 It is the dark side of democracy, a by-product of what Professor Thomas
Hansen of Stanford calls democracy’s tendency to “foreground… a cause, a grievance”24 with as
much potential to divide as to reconcile. Elections being episodic by nature, electoral violence
will be more akin to the “internal disturbances and tensions, such as riots [and] isolated and
sporadic acts” which fall short of armed conflict as defined in humanitarian law.25 Two
examples illustrate the particularity of electoral violence:
electoral lists were reported to have been used in 1983 when the Sri Lankan ruling party’s supporters, traveling in state-owned buses, carried out attacks on the Tamil population26
women throughout Zimbabwe who are affiliated with the MDC were abducted, beaten, and gang raped by President Mugabe’s ZANU-PF youth militia27
The diffuse nature of electoral violence begs the question of what conduct might be legally
attributed to a political party.28 Even assuming an act of misconduct can be traced to party
employees or registered members, let alone mere supporters or sympathizers, to what extent do
the perpetrators act in this capacity? Members of Africa’s notorious partisan youth organizations
might be driven less by party affiliation and more by youthful aggression or material rewards.29
22Dorina Bekoe, Introduction, in Voting in Fear: Electoral Violence in Sub-Saharan Africa 2 (D. Bekoe ed., 2011).23 Andreas Mehler, Political Parties and Violence in Africa, in Votes, Money and Violence: Political Parties and Elections in Sub-Saharan Africa 210 (M. Basedau, G. Erdmann and A. Mehler eds., 2007) [Mehler]. See also Yasmin Khan, South Asia: From Colonial Categories to a Crisis of Faith?, in The Blackwell Companion to Religion and Violence 367, 371 (A. Murphy ed., 2011) (noting the view that “violence in South Asia [is] part and parcel of political life and just another tool on the spectrum of political methods.”) [Khan].24 Thomas Hansen, The Political Theology of Violence in Contemporary India, 2 South Asia Multidisciplinary Academic Journal (April 7, 2013, 5:00PM), http://samaj.revues.org/1872. See also Khan, supra note 22, at 374 (noting a “form of theatrical politics where the crowd takes on well-known scripts and actions.”).25 Accord Rodley, supra note 3, at 313.26 Khan, supra note 22, at 369.27 AIDS Free World, Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe 15 (2009) [Electing to Rape].28 Mehler, supra note 22, at 200, 201. See also Rodley, supra note 3, at 301.29 Mehler, supra note 22, at 204-205.
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Like ZANU-PF in Zimbabwe, another rebel group turned political party, Kenya’s African
National Union, has put members of its youth wing on the party payroll in past election
campaigns.30 And how to disentangle partisan from ethnic motives? So frequently are ethno-
religious cleavages exploited to political ends—even being invoked, from time to time, to justify
prohibiting political parties outright31—that in a book surveying this correlation Human Rights
Watch felt it necessary to specify that it “does not condemn the formation or existence of …
political parties based on religious or ethnic affiliation” per se.32
The attribution question cannot be answered in the abstract. However, it is suggested that
liability should not require evidence that party leaders “explicitly called” for misconduct.33 That
standard would exclude situations like the one in Apartheid South Africa, where
“self-defense units set up with the encouragement of the ANC [African National Congress] became undisciplined and preyed on the communities they were supposed to protect. Meanwhile, radical black groups opposed to the negotiations, such as… the armed wing of the PAC [Pan Africanist Congress], carried out attacks on whites.”34
Rather, the common law notion of vicarious liability should be relied on to assess political
parties’ breach of international obligations. In proceedings against a corporation under the US
Alien Tort Statute, Judge Posner of the Seventh Circuit approved of civil liability for
international law violations “directed, encouraged or condoned at the… defendant’s decision-
making level”.35 This standard might be satisfied with respect to a political party, at least
constructively, where gang-rapes of opponents are perpetrated at party “base camps” by men
chanting partisan slogans and wearing party-issued t-shirts.36 Similarly, in connection with
30 Electing to Rape, supra note 26, at 46; Liisa Laakso, Insights into Electoral Violence in Africa, in Votes, Money and Violence: Political Parties and Elections in Sub-Saharan Africa 224, 231 (M. Basedau, G. Erdmann and A. Mehler eds., 2007). 31 Fox, supra note 22, at 56.32 Human Rights Watch, Slaughter Among Neighbors: The Political Origins of Communal Violence 2, 7, 66 (Yale University Press 1995) [HRW]. See also Mehler, supra note 22, at 205, and Khan, supra note 22, at 369. 33 Mehler, supra note 22, at 203.34 HRW, supra note 30, at 66.35 Flomo v. Firestone Nat. Rubber Co. LLC, 643 F.3d 1013, 1021 (7th Cir. 2011).36 Electing to Rape, supra note 26, at 15, 18.
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international criminal law, non-state actors’ liability may be founded upon “organizational
complicity” in the commission of any offence.37
Rationale for Imposing International Obligations on Political Parties
The above examples make clear that if internationally enshrined rights of participative
governance are to be protected, as will be seen below to be mandated by the International
Covenant on Civil and Political Rights (ICCPR), they need protecting as much from non-state
actors as from authorities, if not more so.38 Comprising the rights to vote and seek elected office,
and forming part of a larger “complex of related rights” such as freedom of association and
expression,39 participation rights serve both inherent and instrumental purposes. They are an end
in themselves in so far as they affirm individual dignity and self-worth by enabling citizens to
engage with, influence and ultimately serve in their governments.40 They are equally a means to
stabilize society, minimizing the likelihood of disruptive, possibly violent challenges to authority
by enhancing the acceptability and legitimacy of enacted laws.41 Considered alongside the
established correlation between domestic democracy and international peace,42 respect for
participation rights in a given domestic context has significant transnational security
implications.
Moreover, in the near-unanimous estimation of the UN General Assembly, participation rights
play a “crucial” part in ensuring “enjoyment by all of a wide range of other human rights and
fundamental freedoms”.43 It is this foundational or prophylactic role that distinguishes
participation rights from other human rights sought to be protected by imposing international
37 Clapham, supra note 2, at 914.38 Accord Clapham, supra note 2, at 902. See also Knox, supra note 3, at 18 (“the enjoyment of many human rights may be interfered with by private actors, not just by governments; private actions must therefore be addressed to protect human rights fully.”), 19 (“Private actors unquestionably have the power to harm one another in ways that impair human rights.”).39 Steiner, supra note 18, at 77. See also Franck 1992, supra note 3, at 79.40 Steiner, supra note 21, at 102, 105. See also Council for Security and Cooperation in Europe (now the OSCE),Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE I(5.1, 5.2) (26 January 1990) [Copenhagen Document]; Boutros-Ghali, supra note 4, at 27 (stating democracy “aims to promote the dignity and worth of the individual human being”).41 Wheatley, supra note 21, at 239; Franck 1992, supra note 3, at 51. 42 Franck 1992, supra note 3, at 88.43 G.A. Res. 46/137, Enhancing the effectiveness of the principle of periodic and genuine elections, 43rd Sess., U.N. doc. A/RES/46/137 (17 December 1991). See also Steiner, supra note 21, at 77.
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obligations on non-state actors. When international tribunals or treaty bodies articulate such
obligations, they are sometimes criticized as having intruded on the prerogatives of (elected)
national governments.44 This criticism might be especially pronounced where the “essentially
domestic matter” of how societies choose their leaders is at issue.45 But that perspective assumes
domestic governments are, in fact, freely chosen and reflect the will of the people, whereas this
is not true of political parties which triumph through electoral misconduct.
As recognized by the UN Human Rights Committee, political parties play a “significant role in
the conduct of public affairs and the election process”; its predecessor body, the UN Human
Rights Commission, underlined their “key role…in strengthening democracy”.46 Pluralism has a
longer pedigree under regional instruments: the Inter-American Democratic Charter of the
Organization of American States declares, “[t]he strengthening of political parties and other
political organizations is a priority for democracy”, and the European Court of Human Rights
has stated, “political parties are a form of association essential to the proper functioning of
democracy”.47 Though the Strasbourg Court articulated this rationale for granting standing to
political parties as claimants under international law, their integral role in national governance
surely militates equally strongly for imposing international obligations upon them. Political
parties bring to bear collective resources and organizational capacity which, if used to bad ends,
may gravely violate the participation rights of opposing candidates and supporters.48 By the
44 Accord Andrew Clapham, Human Rights Obligations of Non-State Actors 558 (2006) (“those most antagonistic to the judicial enforcement of human rights obligations against non-state actors were concerned with the anti-majoritarian aspects of such a development through the delegation of crucial decisions” to judges). 45 Fox, supra note 22, at 87.46 UN Human Rights Committee, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service, CCPR/C/21/Rev.1/Add.7, at para. 26 (1996) [General Comment No. 25]; Commission on Human Rights, Resolution 2005/36, The incompatibility between democracy and racism, UN doc. E/CN.4/2005/36 (2005) [Commission on Human Rights].47 Inter-American Democratic Charter, Organization of American States, 28th Sess. (11 Sept. 2001), art. 5; Communist Party of Turkey, supra note 20, at para. 25.48 Accord John Knox, Horizontal Human Rights Law, 102 Am. J. Int'l L. 1, 19 (“Some private actors, such as multinational corporations and religious institutions, are powerful in their own right, even if they do not command armies”) (2008) [Knox]. See also Clapham, supra note 2, at 919 , by analogy with corporations (arguing that organizations, unlike individuals, “could be found liable due to a failure in their systems.”).
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same token, where they contest elections consistently with international norms, political parties
have a unique capacity to foster participative governance.49
A capacity to either inhibit or promote participation rights is enhanced in the case of incumbent
ruling parties, separated as they are by only a “thin line” from the resources of the state.50 From
Africa to the former Soviet Union, there is a rich tradition of governments deploying state agents
to do the dirty, partisan work of intimidating opposition candidates and supporters.51 If
“complicity” between nominally non-state actors and states is a common justification for holding
non-state actors to international standards, ruling parties are the ultimate embodiment of this
rationale. They don’t merely act with or “like” a government: where states are weak and parties
strong, they substantially are the government.52 Even where they don’t directly exploit this
status to violate opponents’ participation rights, elected officials and their appointees may turn a
blind eye as partisan agents do so for them.53 In so far as the infringed participation rights are
enshrined only domestically, impunity will result to the extent that domestic institutions prove
unable or unwilling to hold either state or party to account.54 In such cases, international human
rights obligations offer the only means of piercing the government veil and holding culpable
political parties to account.55
But it is not only the special nature of participation rights and political parties that cries out for
their direct subjection to international obligations. The need also lies in the fundamentally
49 Kumar, supra note 10, at 506, 512 (noting with respect to proliferating of democracy assistance programs targeting political parties, “It is assumed that once senior party officials obtain advice they need, they will disseminate the necessary information and communicate it to their local offices“).50 Electing to Rape, supra note 26, at 43.51 See e.g. Valerie Bunce & Sharon Wolchik, Defeating Authoritarian Leaders in Postcommunist Countries 184, 196 (2011); Electing to Rape, supra note 26, at 10 (noting “rape and torture perpetrated by ZANU-PF youth militia [alongside] agents of Zimbabwe’s Central Intelligence Organization”).52 Accord Knox, supra note 55, at 20 (a “nominally nongovernmental actor may be acting so much like a government, or in such close complicity with it, that it should be treated according to the same standards”). Contrast Zimbabwean Human Rights NGO Forum v. Zimbabwe, AHRLR 128, at paras. 137-141 (ACHPR 2006), quoted in Electing to Rape, supra note 26, at 43 (noting formalistically that “the ZANU (PF) is a political party (the ruling party) in Zimbabwe and just like any other party in the country, distinct from the government . . . even though some of the members of the Zimbabwe government also hold top ranking positions in the party”).53 Accord Knox, supra note 55, at 20.54 Accord Knox, supra note 55, at 20. See also Electing to Rape, supra note 26, at 13, 33 (“the police refused to file reports implicating the ZANU-PF in such crimes”).55 Accord Knox, supra note 3, at 20.
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voluntarist nature of international law. With sovereign states as its principal subjects,
international law embodies a kind of Aristotlean jus auctoritas in which compliance with rules
depends largely on their perceived legitimacy rather than any Hobbesian coercive authority as is
the tendency in domestic systems.56 In turn, Professor Franck suggests, legitimacy reduces to a
further perception of coherence: is the rule grounded in a coherent principle connecting it to
other rules?57 With respect to the rules associated with—the obligations corresponding to—
participation rights, it is suggested that these will lack coherence, and therefore a compliance-
pull over state actors, if political parties, whose role in democratic processes is so avowedly
pivotal, are not also bound by those rules. If such a central non-state actor—separated, often,
only by an election from governing the state—is not bound to respect participation rights, states
arguably will not feel so inclined, either.
International Legal Framework of Participation Rights
It is one thing to assert that political parties should be subject to international obligations. In
assessing the extent to which political parties are subject to international obligations, if only by
implication, the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights appear at first glance to offer fertile ground. Both instruments articulate
sweeping rights of participation, as in Article 21 of the Universal Declaration:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.(2) …(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections58
So broad is this wording that it suggests corresponding duty-holders might extend beyond
electoral authorities to include political parties. But the more fundamental question is whether
the Universal Declaration enshrines any legal rights or obligations at all. Its genesis as a
resolution of the UN General Assembly, unsigned and unratified, and its preambular self-
56 Thomas M. Franck, The Power of Legitimacy Among Nations 26-27, 33-34, 174 (1990) [Franck 1990]. 57 Franck 1990, supra note 65, at 163, 174-175.58Universal Declaration of Human Rights, G.A. Res. 217 A (III), 3rd Sess., art. 21 (10 December 1948) [Universal Declaration].
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description as setting out not rules but mere “standard[s] of achievement”,59 take it definitively
out of the realm of treaty law binding states, much less political parties.
The Declaration’s status as customary international law is more ambiguous. Its dismissal by Sir
Nigel Rodley as comprising language of mere “fact or faith”60 is surely overstated: even in the
domestic context, legal rules typically are formulated as “general declarations” rather than
specific “directives”.61 Besides, signalling the subjectivity inherent in any such analysis,
Professor Thomas Franck of Harvard has noted the Declaration’s “considerable determinacy”.
This, together with its overwhelming approval by the General Assembly, and the prestige
accruing to it subsequently, suggest that the Declaration does in fact articulate rules of customary
law.62 Here too a caveat may be necessary, however, since at least as of 2007, and in spite of the
entrenchment of electoral democracy following the Cold War, Article 21 of the Universal
Declaration—the provision of primary interest in respect of political parties—is said not to count
among the articles that have crystallized into customary international law.63
Thus it falls to Article 25 of the International Covenant on Civil and Political Rights (ICCPR), a
treaty ratified by 167 states and probably binding others as customary law,64 to definitively
enshrine participation rights under international law:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;65
59 Universal Declaration, supra note 51.60 Rodley, supra note 3, at 306. 61 Stephen Smith, Duties, Liabilities and Damages, 125 Harv. L. Rev. 1727, 1746 (2008) [Smith]. 62 Franck 1992, supra note 3, at 61. 63 European Commission & NEEDS, Compendium of International Standards for Elections 26 (2007) [EU Compendium].64 UN Treaty Collection, ICCPR Status as at 15-04-2013, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en; Franck 1992, supra note 3, at 58.65 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 999 U.N.T.S. 171, art. 25 (16 December 1966, entered into force 23 March 1976) [ICCPR].
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As with the text of the Universal Declaration, it is not obvious that corresponding obligations
attach to electoral authorities to the exclusion of political parties. By way of contrast, the
provision of the European Convention on Human Rights addressing participation rights specifies
unambiguously that it is the state “Contracting Parties” which “undertake to hold free
elections…under conditions which will ensure the free expression of the opinion of the
people”.66 Yet the UN Human Rights Committee, the independent body tasked with monitoring
ICCPR compliance, has authoritatively interpreted the treaty as applying to states alone.67 As a
matter of international law, the committee has emphasized that it remains for “states [to] ensure
that, in their internal management, political parties respect the applicable provisions of article
25”, a view consistent with the committee’s reading of the ICCPR-imposed “obligations on
States Parties” as encompassing “protect[ion] by the State, not just against violations of
Covenant rights by its agents, but also against acts committed by private persons or entities”.68
In short, although acknowledged to encompass the conduct of political parties on their face,
neither the Universal Declaration nor the ICCPR as currently interpreted imposes international
legal obligations directly upon them. Under these instruments, political parties lack “sufficient
status” to violate the enshrined rights of participation.69 At most, state parties to the ICCPR are
exhorted to transpose its provisions into domestic law, and thus to bind political parties indirectly
by way of treaty-implementing legislation.
International Instruments Addressing Political Parties
The first hint that something is amiss with this interpretation of the ICCPR comes when it is
compared to that of another universal treaty, the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW). CEDAW binds even more states than does the
66 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. No. 9, art. 3(20 March 1952, entered into force 18 May 1954).67 UN Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), at para. 8 [General Comment No. 31]. 68 General Comment No. 25, supra note 39 at para. 26; General Comment No. 31, supra note 60, at para. 8 (emphasis added).69 Accord Rodley, supra note 3, at 303, 304 (“we cannot easily presume that international law has invested certain private individuals or groups with sufficient status to become themselves violators of that law.”).
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ICCPR.70 Like ICCPR Article 25, it contains a provision enshrining participation rights, albeit
from a gender-specific perspective, in Article 7:
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;(b) …to hold public office…71
On its face, CEDAW’s explicit direction to states alone invites as restrictive an application as
that given to the ICCPR. Yet the UN Committee on the Elimination of Discrimination against
Women, the treaty body responsible for monitoring CEDAW’s implementation, has
authoritatively interpreted Article 7 to impose international obligations directly on political
parties within ratifying states:
Political parties must embrace the principles of equal opportunity and democracy and endeavour to balance the number of male and female candidates.72
...political parties also have a responsibility to ensure that women are included in party lists and nominated for election in areas where they have a likelihood of electoral success.73
And that
… political parties have an obligation to demonstrate their commitment to the principle of gender equality in their constitutions, in the application of those rules and in the composition of their memberships…74
While CEDAW’s direct application to political parties depends upon interpretation of its
provisions, some regional treaties address political parties by their very terms. This may reflect
characteristics inhering in universal international instruments as distinct from merely regional
international instruments: the former must lend themselves to diverse national contexts and
sensitivities, whereas the latter will reflect “the relative homogeneity of…members’ political
70 Un Treaty Collection (9 April 2013, 9:00PM), http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en71 Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 13, art. 7 (18 December 1979, entered into force 3 September 1981).72 UN Committee on the Elimination of Discrimination against Women, CEDAW General Recommendation No. 23: Political and Public Life, A/52/38 at para. 22 (1997). 73 Ibid., para. 28.74 Ibid., para. 34.
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systems and traditions”75s—not to mention the homogeneity of their challenges, such as the
electoral misconduct so pressing and notorious in the regions discussed below.
A more cynical reason for this development might be precisely the entrenchment and refinement
of participation rights in international law since the Cold War. This process has effectively
“internationalized” questions of “regime legitimacy” which previously were asked and answered
solely on the domestic plane.76 As a result, most contemporary governments seek the validation
attendant on protecting participation rights77 even as, presumably, they do not want to encumber
their electoral tactics relative to that of opposing parties. They might therefore calculate that the
obligations corresponding to participation rights should bind opposition parties just as they do
the party which, by virtue of being in government, may find itself associated or imputed with the
wrongful conduct of electoral authorities. This possible explanation parallels Rodley’s
speculation about those sections of the Geneva Conventions applying directly to rebel groups,
namely that states would be “profoundly neglectful of their own interests blindly to allow the
standards to be framed as applying to their own behaviour and not to that of their opponents”.78 It
also reflects the fundamental truth that a government is, at its core, a victorious political party.
Presumably this is why the OSCE has deemed it necessary to exhort “a clear separation between
the State and political parties”, and why international election observers unfailingly scrutinize
incumbents’ use of state resources for partisan ends.79
Whatever their precise motivations, post-communist countries comprising the Commonwealth of
Independent States (CIS) have concluded a Convention on the Standards of Democratic
Elections, Electoral Rights and Freedoms. Now in force, the Convention reaffirms both the
Universal Declaration and the ICCPR and proceeds to direct that
75 Steiner, supra note 18, at 95.76 Fox, supra note , at 50. See also Franck 1992, supra note , at 46; Wheatley, supra note , at 227.77 Franck 2000, supra note 13, at 28.78 Accord Rodley, supra note 3, at 316. 79 Copenhagen Document, supra note 41, at I(5.4); OSCE/ODIHR Election Observation Handbook 62 (2010) [OSCE/ODIHR Handbook]; European Commission, Handbook for EU Election Observation 52 (2007) [EU Handbook].
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No candidate, no political party (coalition), no other public association or public organization shall use the methods of psychic, physical, religious compulsion or calls for violence or threats of violence or any other forms of coercion.80
And that
Each candidate and each political party (coalition) participating in elections shall accept the voting returns and results of democratic elections...81
Similarly, members of the Economic Community of West African States (ECOWAS) have
signed a Protocol on Democracy and Good Governance which is in legal force.82 The Protocol
mandates in relevant part that
The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner…83
Between these two instruments, 26 states from Turkmenistan to Togo have bound political
parties to direct obligations under international law. Particularly in the human rights realm, it
has long been accepted that treaties may impose international obligations not merely on the
state parties but directly upon domestic non-state actors.84 Where treaties purport to do so, they
“should be read as meaning what they say”, consistent with rules of treaty interpretation.85
This position in no way detracts from the established rule that treaties cannot bind third states
or international organizations—that is, entities having full international legal personality in
their own right—without their express consent.86 Adopting Franck’s technique of “collective
interpretation”,87 these treaties of the CIS and ECOWAS substantially buttress emergent
international obligations of political parties.
80 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States, Commonwealth of Independent States, art. 8(3) (7 October 2002, entered into force November 2003). [CIS Convention]. 81 Ibid., art. 9(7).82 Massaër Diallo, Presentation, Le protocole additionnel de 2001 de la CEDEAO : place et rôle dans la promotion de la démocratie et la gouvernance en Afrique de l`Ouest at Atelier d’appropriation, de dissémination et de mise en oeuvre des instruments régionaux de gouvernance démocratique en Afrique de l’Ouest 3 (“Depuis juillet 2005, les États signataires l’ayant ratifié ont atteint le nombre des 9 nécessaires pour que le Protocole s’applique à tous.”) (16-19 October 2007), http://www.oecd.org/fr/csao/evenements/41506905.pdf. 83 Protocol on Democracy and Good Governance, Economic Community of West African States, A/SP1/12/01 (21 December 2001, entered into force July 2005), art. 9 [ECOWAS Protocol].84 Meron, supra note 15, at 33, 34.85 Knox, supra note 3, at 30, 31.86 Vienna Convention on Law of Treaties between and International Organizations or between International Organizations, 25 ILM 543 (21 March 1986), art. 35.87 Franck 1992, supra note 3, at 47.
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The number and range of states embracing such norms is even more impressive when soft law
instruments are factored in: that is, instruments not strictly binding in international law but
nonetheless manifesting some “capacity to obligate”88 as well as an intent to do so. For example,
heads of government of the (then) 54 African Union member states have adopted a Declaration
on the Principles Governing Democratic Elections. Like the CIS Convention, the AU
Declaration reaffirms relevant provisions of the Universal Declaration and ICCPR in its
preamble. It proceeds to direct that
No individual or political party shall engage in any act that may lead to violence or deprive others of their constitutional rights and freedoms.89
Every candidate and political party shall respect the impartiality of the public media…90
Every individual and political party participating in elections shall recognize the authority of the Electoral Commission or any statutory body empowered to oversee the electoral process and accordingly render full cooperation…91
And
Every citizen and political party shall accept the results of elections proclaimed to have been free and fair by the competent national bodies … or, challenge the result appropriately…92
The CIS Convention, ECOWAS Protocol and AU Declaration reflect the collective will of
states’ executives to impose international obligations on political parties within discrete regional
blocs. In contrast, the Inter-Parliamentary Union (IPU) is an intergovernmental organization
consisting of states’ legislative branches. Its reach is global, with 162 national member
legislatures, and its influence is reflected in permanent UN observer status.93 The IPU’s
unanimously-adopted Declaration on Criteria for Free and Fair Elections therefore evidences the
breadth of support for international norms of political party conduct across not only territories
88 Franck 1990, supra note 65, at 29.89 Declaration on the Principles Governing Democratic Elections in Africa, African Union, AHG/Decl.1, 38th Sess. (8 July 2002), art. IV(8) [AU Declaration].90 Ibid., art. IV(11). 91 Ibid. art IV(12).92 Ibid., art. IV(13).93 Members of the Union, Inter-Parliamentary Union (7 April 2013, 7:00PM), http://www.ipu.org/english/membshp.htm
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but branches of government. Having reaffirmed the Universal Declaration and ICCPR in its
preamble, the IPU Declaration states in relevant part that
Candidature, party and campaign rights carry responsibilities to the community. In particular, no candidate or political party shall engage in violence.94
Every candidate and political party competing in an election shall respect the rights and freedoms of others.95
And that
Every candidate and political party competing in an election shall accept the outcome of a free and fair election.96
Whether hard or soft, strictly legal or merely political, the international instruments canvassed
above permit a number of conclusions to be drawn as to the international legal status of political
parties. First, as a matter of treaty law, the UN Human Rights Committee’s interpretation of
ICCPR Article 25 is increasingly an outlier in so far as it does not recognize the direct
application of obligations to political parties. Subsequent agreements between state parties to a
treaty such as the ICCPR have an interpretive role to play as regards that treaty, at least as
between those states, whether by establishing their own interpretation of it—as the CIS
Convention arguably does in explicitly referencing the ICCPR—or as a relevant rule of
international law applicable to them in its own right, as the ECOWAS Protocol is.97 Even
strictly non-binding instruments, such as the AU and IPU Declarations, are increasingly relied on
to give content to treaty standards.98 A credible interpretation of ICCPR Article 25, therefore,
would impose international obligations directly on political parties.
Second, as a matter of customary international law, hard as well as soft law instruments
concluded by intergovernmental organizations have “tremendous importance” in ascertaining the
94 Declaration on Criteria for Free and Fair Elections, Inter-Parliamentary Union, 154th Sess., (26 March 1994), art. 3(9) [IPU Declaration].95 Ibid., art. 3(10). 96 Ibid., art. 3(11).97 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (23 May 1969, entered into force 27 January 1980), article 31(3). 98 Andrea Bianchi, Looking Ahead: International Law’s Main Challenges, in Routledge Handbook of International Law 392, 399 (David Armstrong ed., 2009) [Bianchi].
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opinio juris of states necessary to elucidate binding rules on the international plane.99 The
collective will manifested by CIS, ECOWAS, IPU and AU member states to bind political
parties rebuts Rodley’s traditional, statist presumption against international law vesting non-state
actors with “sufficient status to become themselves violators of that law.”100 Whatever
opposition states might historically have evinced to treating non-state actors as “proper”
international legal subjects101 has, at least with respect to political parties, collapsed
spectacularly. That it has done so in similar terms across states from Africa to the former Soviet
Union, many of them specially affected by electoral misconduct, adds credence to the possibility
that we are witnessing the formation of customary international law binding upon political
parties, at any rate on a regional basis.102 Moreover, the range of states concerned shows that
this development is far from an exercise in cultural imperialism.103
Third, as a practical matter, it may be irrelevant to their importance whether the instruments
surveyed above constitute hard law strictly speaking. Notwithstanding traditional, positivist
conceptions, the force of international rules does not necessarily derive from their source.104
Indeed, treaties and custom deriving from state practice are increasingly viewed as outdated
parameters of international law, confining it to a vertical, constraining role over states rather than
a horizontal, facilitative role across societies.105 Though not legally binding per se, the AU and
IPU Declarations are laden with opinio juris, to paraphrase Franck, and are unambiguously
“norm-creating”106 in respect of political parties. This is clear from their consistent use of
manifestly obligatory forms (“shall”) rather than merely hortatory ones (“should”).107 And, as
99 A. Pellet, Commentary to Article 38, in The Statute of the International Court of Justice: A Commentary (A. Zimmerman ed., 2006) 677, 751-2 [Pellet]. See also Bianchi, supra note 84, at 399 (“soft law may…set the preparatory stage for the development of international hard law”).100 Rodley, supra note 3, at 304.101 Rodley, supra note3, at 311. See also Knox, supra note 3, at 19 (“A common belief used to be that international law cannot place such duties on private actors because, unlike governments, they are not subjects of international law, and only subjects of international law can hold rights and duties under it. If this conception of international law was ever valid, it is not now.”).102 Accord Pellet, supra note 85, at 752. 103 Contrast Rodley, supra note 3, at 317, 318.104 Franck 1990, supra note 93, at 205-6.105 Bianchi, supra note 84, at 398-9 (“although some norms are non-legally binding, they are…as effective in addressing the needs of the international community as legally binding norms.”).106 Accord Franck 1992, supra note 42, at 67 (referring to the OSCE Charter).107 Accord Fox, supra note 22, at 68. Contrast Rodley, supra note 3, at 306.
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Professor Hart of Oxford wrote in specific connection with international affairs, “the proof that
‘binding’ rules in any society exist, is simply that they are thought of, spoken of, and function as
such” among relevant actors.108 All of which begs the question: do actors on the world stage
appear to think and speak of political parties as being directly bound by international rules?
The Conduct of Relevant Actors
UN Permanent Bodies
Alston echoes Hart’s general analytical approach to international law in the specific context of
rebel groups, emphasizing the attitude of international bodies towards armed non-state actors.
Though not insisting that these bodies think and speak in terms of rules as such, Alston stresses
the articulation of “human rights expectations of the international community”. He finds these
expressed chiefly in the Security Council’s practice of “call[ing] upon various groups that
Member States do not recognize as having the capacity to formally assume international
obligations to respect human rights.”109
This reflects is the central “naming and shaming” function110 of UN bodies. Obligatory language
is rare even in resolutions of the Security Council, the UN’s most powerful organ, and even in
respect of states, unquestioned subjects that they are of international law. Thus, by analogy with
the technique of Hart and Alston, this section will examine resolutions of permanent bodies of
the UN, as well as documents prepared at the direction of such bodies, for obligatory or merely
hortatory language suggesting that the obligations corresponding to internationally enshrined
participation rights apply to political parties as well as state authorities.
A 1996 resolution of the Security Council “note[d] with concern…the reports of violence
perpetuated by youth groups associated with some political parties”, and “encourage[d] the
Government of Burundi and the political parties to remain engaged in dialogue”.111 That same
year, the Council’s focus shifted westward, to Côte d’Ivoire, where it “call[ed] upon…political
parties to redouble their efforts” at publishing an electoral list, a “crucial” outstanding step in
108 H.L. Hart, The Concept of Law 226 (1st ed. 1961) [Hart]. See also Franck 1990, supra note 93, at 206 (stressing “observation of the behavior of the international community” in identifying international rules).109 Alston, supra note 6, at para. 27 (emphasis added).110 Accord Clapham, supra note 2, at 921. 111 Security Council, Resolution 1902, pmbl., para. 6, UN doc. S/RES/1902 (2009).
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ensuring that country’s schedule election would proceed in full respect of participation rights.112
In 2010, having “call[ed] upon all political parties in Nepal to expedite the peace process” and
transition towards a “democratic and more prosperous future”, in the same resolution the
Security Council requested the UN Secretary-General to report on democratic developments in
Nepal. In his report, having observed “friction between youth wings of the political parties”, the
Secretary-General stated, “political parties are accountable for the activities of their respective
youth wings” and “need to ensure that children are not exposed to or forced to participate in
violent activities.”113 A similar request of the Security Council led the Secretary-General to
“call on Sierra Leone’s political party leaders to promote a culture of constructive dialogue” and
to “urge all political parties and their supporters…to create a peaceful and conducive
environment for an electoral process”.114
The UN General Assembly has likewise communicated its human rights expectations directly to
political parties. That it began to do so during the wave of decolonizations in the mid-20th
Century contributes, not incidentally, to the pedigree of norms directly addressing political
parties. For example, in establishing a council to preside over the adjacent trusteeships of Ewe
and Togoland ahead of a planned election in 1954, the General Assembly “recommend[ed] that
the political parties in the two Territories collaborate closely with the respective Administrative
Authorities with a view to carrying out the identification of the adult persons for electoral
purposes”.115 In 1960, the General-Assembly deployed to Ruanda-Urundi only the second-ever
international election observation mission, ahead of the then-colony’s independence from
Belgium. In its resolution authorizing the deployment, the Assembly “appeal[ed] to all parties
and political leaders…to exert their efforts to achieve an atmosphere of understanding, peace and
harmony for the good of their Territory”.116 More recently, returning its attention to the now
independent state of Burundi, the General Assembly “urge[d] all political parties, military
112 Security Council, Resolution 1865, para. 21, UN doc. S/Res/1865 (2009).113 Security Council, Resolution 1921, para. 5, UN doc. S/RES/1921 (2010); Secretary-General, Report on children and armed conflict in Nepal, paras. 17, 18, 42, UN doc. S/2010/183 (2010).114 Secretary-General, Report on the United Nations Integrated Peacebuilding Office in Sierra Leone, para. 60, UN doc. S/2011/554 (2011).115 General Assembly, Resolution 750, The Togoland Unification Problem, para. B(2), UN doc. A/RES/8/750/B (1953).116 General Assembly, Resolution 1579, Question of the Future of Ruanda-Urundi, para. 5, UN doc. A/RES/15/1579 (1960).
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leaders, the media and civil society to dissociate themselves from extremist forces, to reject all
extremism and all ethnic or political fanaticism, to settle disputes through negotiation and
dialogue”.117
2003 marked a significant shift as, for the first time, the General Assembly addressed itself inter
alia not to political parties in specific transitioning societies and in connection with specific
elections, but to political parties universally, “underlin[ing] the key role that political leaders and
political parties can and ought to play in strengthening and promoting democracy by combating
racism”, and “encourage[ing] political parties to take concrete steps to promote solidarity,
tolerance and respect” among and for minority groups. This represents a considerable expansion
of the scope of participation rights, with corollary expectations extending to the substance of
political party platforms. In so doing, the Assembly was explicitly “[g]uided by the Universal
Declaration of Human Rights [and] the International Covenants on Human Rights”,118 suggesting
that these instruments do leave room for application to non-state actors. This newly-articulated
expectation of political parties followed—and incorporated verbatim the language of—the 2001
Durban Declaration, adopted by consensus of UN member states at the 2001 World Conference
against Racism and expressing concern “that racism is gaining ground…including through the
platforms of some political parties”.119
Nor was the General Assembly alone in seizing on the Durban Declaration as a basis to articulate
expectations of political parties. From 2000 until its dissolution in 2006, the UN Commission on
Human Rights annually adopted a resolution in the very same language of the General Assembly
resolution, complete with preambular invocation of the Universal Declaration of Human Rights
and the ICCPR.120 As of 2003, the Commission’s resolutions got even more specific, suggesting
that political parties develop codes of conduct including “internal disciplinary measures for
117 General Assembly, Resolution 159, para. 4, UN doc. A/RES/50/159 (1996).118 General Assembly, Resolution 159, The Incompatibility between Democracy and Racism, para. 9, pmbl., UN doc. A/RES/58/159 (2003). 119 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration and Plan of Action, paras. 83, 115, UN doc. A/CONF.189/12 (8 September 2001) (endorsed in General Assembly Resolution 266, paras. 1,6, UN doc. A/RES/56/266 (2002)). 120 Commission on Human Rights, supra note 52, at para. 9, pmbl. See also Commission on Human Rights Resolutions 2000/40, 2001/43, 2002/39, 2003/41 and 2004/38, The Incompatibility between Democracy and Racism.
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violations thereof, so their members refrain from public statements and actions that encourage or
incite racism”. That language was retained by the Commission’s successor, the Human Rights
Council, in a 2011 resolution.121
This string of resolutions of the Human Rights Commission (and, later, of the Human Rights
Council) invited further scrutiny of the racism’s relationship to democracy by the Special
Rapporteur on Contemporary Forms of Racism. Intriguingly, the Special Rapporteur’s
submissions reflect a kind of paradigm shift playing itself out in real time. For example, his
2004 report on implementation of the Durban Declaration, submitted to the General Assembly,
asserts on the one hand that “states must exercise greater control over racist and xenopohobic
statements and ideas—especially when they are expressed by representatives of political parties”.
On the other hand, the report implicitly acknowledges the inadequacy of a statist paradigm (to
paraphrase Thomas Kuhn), and proceeds to speak past states to political parties themselves,
declaring that anti-racism efforts “should be the cornerstone of all political programmes”.122 An
updated version of the same study reiterates the view that “political parties should provide
leadership in the fight against racism and xenophobia”, while the Special Rapporteur’s 2011
report veers into obligatory territory with the statement, “political parties must strongly condemn
all political messages that disseminate ideas based on racial superiority or hatred”.123 This
paradigm shift arguably culminated in the 2012 report, which declares it “essential for political
parties to base their programmes and activities on respect for human rights and…democracy”
and states flatly, “political parties bear considerable responsibility for promoting solidarity,
tolerance and respect”.124
121 Human Rights Council, Resolution 18/15, The Incompatibility between Democracy and Racism, para. 8, UN doc. A/HRC/RES/18/15 (2011).122 Special Rapporteur of the Commission on Human Rights on contemporary forms of racism, racial discrimination and related intolerance: Combatting racism, racial discrimination and related intolerance and comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, paras. 57, 56, UN doc. A/59/330 (4 October 2004). 123 Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance: Implementation of General Assembly Resolution 60/251, para. 61(a), UN doc. A/HRC/5/10 (25 May 2007); Report of the Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance: Implementation of General Assembly resolution 65/199, para. 40, UN doc. A/HRC/18/44 (21 July 2011) (emphasis added).124 Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance: Report on contemporary forms of racism, racial discrimination and related intolerance, paras. 29, 62, UN doc. A/HRC/20/33 (15 May 2012) (emphasis added).
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Election Observation Missions
Another actor highly relevant to expressing international human rights expectations is election
observation organizations. Seen in some quarters to be chief guarantors of internationally-
enshrined participation rights,125 the significance of election observers comes, like the UN bodies
canvassed above, from their capacity to enforce obligations corresponding to participation rights
by naming and shaming actor that breach those rights. Thus, with an eye to buttressing
democracy, inter-governmental organizations including the UN, the European Union (EU), the
AU, the Commonwealth and the Organization of American States routinely deploy election
observation missions at the request of the election-holding state. For their part, the 57 member
states of the Organization for Security and Cooperation in Europe (OSCE) undertake to accept
OSCE observation of each election.126
Election observation draws on international legal standards, chiefly the Universal Declaration,
the ICCPR and any applicable regional instruments, as well as domestic elections law of the host
state.127 At first glance, the “demands” made by international observers conform to the
conventional reading of the Universal Declaration and ICCPR as binding only state emanations:
“the process must be supervised by an independent electoral authority, party activity must not be
limited or disrupted, ballot secrecy must be maintained, suffrage must be universal for adult
residents, access to the media must not be restricted, and fraud in voting and ballot tabulation
must be prevented.”128 Equally of interest to observers are the registration of candidates and
voters and the dispute-resolution process: state-administered steps in whose assessment political
parties will be canvassed but not themselves evaluated.129
But look more closely and there are signs that the conduct of political parties is itself scrutinized
in light of internationally enshrined participation rights. For example, EU election observers will
assess parties’ “internal democracy”: that is, their procedures for selecting candidates and party 125 Franck 1992, supra note 3, at 84.126 Beigbeder, supra note 11, at 149; Franck 1992, supra note 3, at 81; OSCE, Charter of Paris for a New Europe, Annex I(8) (21 November 1990).127 Fox, supra note 22, at 85. See also EU Compendium, supra note 73, at 1; OSCE/ODIHR Handbook, supra note 92, at 17; EU Handbook, supra note 92, at 14. 128 Fox, supra note 22, at 85. See also OSCE/ODIHR Handbook, supra note 92, at 53.129 OSCE/ODIHR Handbook, supra note 92, at 49, 51; EU Handbook, supra note 123, at 133.
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executives, including with respect to diversity.130 More sweepingly, observers’ mandates
encompass assessment of “the conduct of the election campaign”, as by attending partisan
campaign rallies.131 If, as Professor Goodwin-Gill of Oxford has commented, the IPU
Declaration’s reference to campaign practices is broad enough to encompass the responsibility of
“political parties, candidates and their supporters”,132 surely the same is true of such references
in election observation frameworks. As a theoretical matter, though not one that has arisen in
practice, “unfair campaigning” is said to be a basis on which international observers might reject
the results of an election.133
Although overwhelmingly the exception rather than the rule, some intergovernmental election
observer organizations have sparingly directed their only tool as neutral third parties, their
hortatory language, at political parties. Regarding the inclusivity aspect of participation rights,
AU observers of Sierra Leone’s 2012 election stated that “[p]olitical parties should [u]ndertake
affirmative action for participation of women”, while a Commonwealth observation mission to
South Africa declared “political parties [to] have a responsibility” to “reach those eligible for
special voting” and OSCE observers of Kyrgyz Republic elections remarked, “political parties
should consider and encourage the production of voter information and campaign material in
languages used by national minorities”.134 Other observation reports have addressed the
substantive content of partisan platforms, including an OAS mission to Guyana which stated,
“[p]olitical parties should continue to promote politics based on national policies and refrain
from inciting racial prejudices” and an EU mission to Pakistan which concluded, inter alia,
“[p]olitical parties should include religious minority issues in their manifestos.”135
130 EU Handbook, supra note 123, at 133.131 OSCE/ODIHR Handbook, supra note 92, at 49. See also EU Handbook, supra note 123, at 135 (noting that observers at rallies will assess “whether speakers use appropriate non=inflammatory language”).132 Goodwin-Gill, supra note 125, at 44.133 Beigbeder, supra note 11, at 145.134 African Union Commission, Report Of African Union Elections Observation Mission to the 17 November 2012 General Elections in the Republic of Sierra Leone, 18; Commonwealth, Report of the Observer Group, National and Provincial Elections in South Africa 1999, 40; OSCE/ODIHR, Election Observation Mission Final Report, Kyrgyz Republic Parliamentary Elections 2010, 27.135 Organization of American States, Report of the Electoral Observation Mission, General and Regional Elections in Guyana, August 28, 2006, 24; EU EOM Pakistan, supra note 139, at 65.
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Similarly, in ensuring the participation rights of opposing parties’ candidates and supporters,
Commonwealth observers in Sierra Leone “encourage[d] political parties to operate…without
resorting to unhealthy rhetoric and undercurrent messages of violence”, while their counterparts
in Guyana “call[ed] upon political parties and stakeholders to play their roles responsibly and to
adopt a constructive approach to the entire electoral process in order to ensure a peaceful
poll”.136 In some cases, observers’ language is notable for its obligatory tone, as in the
Commonwealth report on Nigerian elections which stated, “[p]olitical parties are also culpable
for the increase of tension, as their supporters were often involved”, and the OSCE mission to the
Former Yugoslav Republic of Macedonia, which declared,
political parties must recognize the full consequences that electoral malfeasance poses to the integrity of an electoral process, and demonstrate a concerted commitment to bring such practices to an end. Party officials should be held accountable for encouraging or conducting illegal activities that undermine the credibility of the elections. Ballot-box stuffing, vote buying, encouraging or condoning violence, group voting or intimidating citizens and election officials are unacceptable practices.137
An approach which assesses political parties’ conduct and directs recommendations at them
embraces election observers’ proactive potential to hone the content of obligations corresponding
to participation rights. Consciously or not, election observation missions have long contributed
to the entrenchment and elaboration of participation rights on the international plane.138 Their
reports are a source of international law, ultimately founded upon yet distinct from the Universal
Declaration and ICCPR, and standing in a dynamic interpretive relationship with those
instruments’ provisions on participation rights.139 For inter-governmental election observers to
exhort respect for those provisions from political parties recognizes the practical capacity for
political parties to deny such rights. If such exhortation becomes the general practice of election
observers, it will set the stage for legal obligations against doing so. Taking collective account
of the developments canvassed above, it is suggested that observers increasingly address
themselves to political parties as well as electoral authorities. 136 Commonwealth, Report of the Expert Team, Sierra Leone Local Government Elections 2008, 16; Commonwealth, Report of the Observer Group, Guyana national and regional elections, 2011, 39.137 Commonwealth, Report of the Observer Group, Nigeria State and Federal Elections 2007, 48; OSCE/ODIHR Election Observation Mission Final Report, Former Yugoslav Republic of Macedonia, Parliamentary Elections 2006, 25.138 Franck 1992, supra note 3, at 69. 139 Fox, supra note 22, at 85.
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The European Court of Human Rights—and Correlative Obligations
So far this paper has examined international instruments with an eye to isolating obligations
directed at political parties. There is no question that all of the surveyed instruments recognize
and enshrine rights of political parties under international law: not only participation rights as
such, but “adjacent” rights of expression, assembly and association.140 For example, the CIS
Convention provides, “political parties…shall be guaranteed freedom of campaigning carried out
in all forms allowed by law”.141 And the ECOWAS Protocol states, “political parties
shall…have the right to carry out their activities freely, within the limits of the law”.142 For
political parties in the 47 Council of Europe member states, including such politically charged
places as Azerbaijan, Bulgaria and Croatia, rights are accorded by the European Convention of
Human Rights, and the European Court of Human Rights provides a concrete means of asserting
those rights in the face of recalcitrant authorities. Throughout its history, the Strasbourg Court
has granted political parties standing to bring claims before it.143
If political parties may so clearly be endowed with international legal rights there can hardly be a
substantive impediment inhering in international law to their being subjects for purposes of
obligations. On the contrary, the question appears to be a procedural or practical one of whether
to exercise prescriptive or adjudicative jurisdiction over political parties.144 In this vein, a
memorandum of the French Foreign Ministry addressing France’s international criminal
jurisdiction states
France has long acknowledged…both the criminal liability of legal entities and the extraterritoriality of certain laws that apply to them in this regard. Legal entities
140 EU Compendium, supra note 54, at 6 (“the adjective genuine can be seen to bring in the so-called adjacent political freedoms and rights, such as the freedom of expression, assembly, association, and movement”). 141 CIS Convention, supra note 71, art. 13(4).142 ECOWAS Protocol, supra note 74, art. I(i). See also AU Declaration, supra note 75, art. IV(6); IPU Declaration, supra note 80, art. 3(4). 143See e.g. Communist Party of Turkey, supra note 20 at para. 25; Republican Party of Russia v. Russia, App. No. 12976/07 (Eur. Ct. H.R. 12 April 2011); Partidul Comunistilor (Nepeceristi) v. Romania, App. No. 46626/99 (Eur. Ct. H.R. 3 February 2005); Communist Party v. Germany, App. No. 250/57 (Eur. Comm’n H.R. 1957).144 Accord J.L. Brierly, The Basis of Obligation in International Law, in The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly 51 (H. Lauterpacht and C. Waldock eds., 1958), quoted in Clapham, supra note 2, at 901, 902. See also Knox, supra note 3, at 19 (“International law has the legal capacity to place direct horizontal duties on all private actors not to violate one another's human rights.”).
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include private law legal entities, both for-profit (companies, partnerships) and non-profit (associations, political parties,…etc.)145
The memorandum proceeds to explain that this jurisdiction is exercised sparingly on account of
“pressure from political parties and associations who feared that they might otherwise incur
liability”.146 In other words, political parties themselves recognize that nothing but the solicitude
of states insulates them from international obligations.
While it lacks the prescriptive jurisdiction of the French state, the treaty-based European Court
of Human Rights has ingeniously wielded adjudicative jurisdiction to impose international
obligations on political parties in select cases. It does so by invoking the abuse of rights
doctrine, as codified in the Convention,147 to dismiss actions by political parties that either call
for or have themselves
“resorted to illegal or undemocratic methods, encouraged the use of violence, aimed to undermine [the respondent state’s] democratic and pluralist political system or pursued objectives that were racist or likely to destroy the rights and freedoms of others.”148
As articulated in 1998’s Communist Party of Turkey decision, the doctrine actually has a long
pedigree with regard to political parties, starting with the Commission of Human Rights’ 1957
decision in Communist Party v. Germany. Its application was reaffirmed in 2001 in Welfare
Party v. Turkey, as the Court held,
“a political party whose leaders incite recourse to violence, or propose a policy which does not comply with one or more of the rules of democracy or is aimed at the destruction of democracy and infringement of the rights and freedoms afforded under democracy cannot lay claim to the protection of the Convention.”149
145 Human Rights Coordination Mission, Re: Criminal liability of private law legal entities under French law and extra-territoriality of the laws applicable to them: Review of the situation and discussion of issues 1 (2006), quoted in Clapham, supra note 2, at 913 [French Foreign Ministry].146 Ibid., at 914.147 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (4 November 1950, entered into force 3 September 1953), art. 17 (“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein …”).148 Communist Party of Turkey, supra note 25, at para. 23. 149 Case of Refah Partisi (Welfare Party) v. Turkey, App. Nos. 41340/98 and 41342-4/98, para. 47 (Eur. Ct. H.R. 31 July 2001).
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In this way, political parties within Council of Europe states can be seen to be subject to an
“obligation not to exceed certain limits in exercising” their participation rights “and not to
exercise [them] with the sole intention of harming others”.150 While this obligation might leave
something to be desired in so far as its breach entails essentially procedural consequences for
political parties appearing before the Court, nonetheless it advances the view that international
obligations attach directly to political parties. Moreover, by formulating the obligation in
essentially correlative terms as one of respect for the participation rights of fellow political
parties and their supporters, the Court avoids a potential pitfall associated with the more diffuse
converse obligations articulated in international instruments. Such obligations may be invoked
strategically by governments, acting in a fundamentally partisan capacity, to “offset”
participation rights accorded by the state to opposition political parties.151
Conclusion
This paper has canvassed and sought to justify emerging international human rights obligations
of political parties. These emerging obligations run the gamut from what might be termed
procedural, in so far as they regulate political parties’ campaign conduct, to substantive, in so far
as they speak to the content of positions taken by political parties. For the moment these
obligations are largely primary: that is, ‘morally authoritative’ obligations of general application
rather than ‘practically authoritative’ obligations accruing to a specific actor upon breach of a
primary obligations.152 International law consists overwhelmingly of primary rules: that is,
“morally authoritative” obligations of general application existing independently of (and often
absent altogether) secondary obligations—in Franck’s phrase, “enforcement mechanisms”—
through which primary obligations might be given practical authority.153 Perhaps the most
famous illustration of this point is that of the duty not to commit genocide, imposed by the
Genocide Convention “long before an international tribunal was authorized to enforce that
150 Accord Robert Ago, The Internationally Wrongful Act of the State, Source of International Responsibility: 3rd
Report on State Responsibility, in 2 Yearbook of the International Law Commission 1971, 199 at para. 68, UN Doc. A/CN.4/246/Add.1-3 (1973). 151 Accord Knox, supra note 3, at 2. See also page 11, supra.152 Accord Smith, supra note 53, at 1747, 1729 footnote 6.. 153 Accord Hart, supra note 91, at 222; Smith, supra note 53, at 1729 footnote 6, 1747; Franck 1990, supra note 65, at 32, 34.
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prohibition”.154 In this vein, even in respect of states, its subjects par excellence, the
International Court of Justice stresses the “binding force” of obligations it imposes even as it
acknowledges that “the Court does not itself have the means to ensure the execution of
orders”.155
Other bodies are already moving beyond primary international obligations. As has been seen,
the European Court of Human Rights will dismiss claims by political parties that have infringed
the rights of others. South Africa’s National Prosecution Authority has opened an investigation
of ZANU-PF for crimes against humanity. These developments embody or set the stage for the
particularized “orders” (of reparation, of injunction, of forfeiture, etc.) that characterize
secondary obligations.156 In time, whether through international criminal proceedings before
domestic courts157 or decisions of independent treaty bodies,158 secondary obligations might
come to complement the primary obligations attaching to political parties under international
law.
154 Knox, supra note 3, at 31.155 LaGrand (Ger. v. U.S.), 2001 I.C.J. 466, para. 107. 156 Accord Smith, supra note 53, at 1747, 1750. 157 Accord Clapham, supra note 2, at 919. See also Knox, supra note 3, at 19 (acknowledging that “international law could not possibly replicate the vast domestic resources devoted to regulating private invasions of interests denominated as human rights by international law”). 158 Accord Knox, supra note 3, 13.