Enriching International Norms on Election Monitoring as a Humanitarian Project

[Hadi Dadmehr is a PhD candidate in Public International law at the National University of Iran (SBU). Hadi was Head of Law Department at the University of Zabol, Iran,  for 6 years. You can find him on Twitter @HadiDadmehr.]

Some nations are blessed with free, fair and reliable electoral process. Some would like to emulate their success, but there seems to be no opportunity. The recent electoral turbulences in Algeria, Bolivia and Venezuela are good examples of such a misfortune. With this in mind, my piece focused on the people’s limited power to stop electoral manipulations. Further, I will address why enriching legal norms on election monitoring would be more effective than imposing sanctions on the governments trampling on people’s right to self-determination.

Malcolm X once famously said that “ballots are like bullets in the hands of civilians”. Taking this into account, one can conceive of circumstances where governments manipulate the election results or restrict people’s right to vote and to be elected. Should the people, in such cases, keep the ballots in their pockets and stay home? if not, are there any effective international measures preserving people’s right to genuine elections?

Although elections deemed to be inherent to national sovereignty, there is a significant body of international laws on the elections requirements. The UN Charter in Article 55 promotes universal observance of human rights and fundamental freedoms for all people. Article 21 of the Universal Declaration of Human Rights, in more concrete terms, proclaimed that the will of the people shall be expressed in periodic and genuine elections. Further, International Covenant on Civil and Political Rights, as a legally binding convention on human rights, made it clear in Article 25 that every citizen shall have the right and the opportunity to vote and to be elected in genuine periodic elections.

Given the above measures, it seems irrefutable fact that government authority should be founded on the free expression of the will of the people. Yet, this argument sounds more like a legal ideal than a political reality. The recent Security Council practice in solving the electoral crises in Ivory Coast (2010) and Gambia (2016), illustrates the need for continuous international involvement to protect people’s vote. To this end, the Security Council Resolution 1975 (2011) installed Alassane Ouattara as the President of Ivory Coast and the Security Council Resolution 2337 (2017) endorsed the recognition of Adama Barrow as the President of Gambia. Prioritizing “democratic legitimacy” over “effective control” by the Security Council is an important practice to consider. Security Council’s complete disregard for the decisions made by the electoral authorities in the Ivory Coast and Gambia over the election results, provides further evidence to support Thomas Franck argument that elections will increasingly fall outside the state’s internal affair (see for more analysis on the Security Council practice in Ivory Coast the Gambia here, here, here, here, and here.)

Notwithstanding international law gradual progress from Apology to Utopia, the author’s view is that the UN selective involvement in the electoral disputes, just on the basis of protests intensity, would be insufficient. Unfortunately, international law leaves the people seeking international support for solving their electoral disputes with a bloody choice: widespread protests on the streets while resisting the government’s crackdown for days and months. Only then, and as a result of a deadly protest, Security Council might take notes of people’s signals and decides to take a serious decision. The focal point, needs to be emphasized, is the heavy cost of signaling being imposed on the people. In fact, the brutal slaughtering of the people, serves as a prerequisite to invoke R2P or other serious measures by the international community.  

However, it seems that international law could save more people’s lives by strengthening international election monitoring. Of course, guaranteeing people’s right to vote in a free and fair elections by international monitoring would not be a panacea for all democratic ills, nor it does necessarily makes Kant’s Perpetual Peace; however, I would contend that conducting free and fair elections would be the only and the best way to protect people’s right to internal self-determination.

But how could I speak of the elections as the people’s only choice, when UNDHR has implicitly allowed people to recourse to rebellion against tyranny and oppression? The reasoning is straightforward: first, it risks people’s life; second, it could be practically ineffective. Street protests, violent confrontations with security forces, civil resistance, civil society strengthening, or even imposing international sanctions would be all ineffective if a government decides to coercively suppress the people. The conclusion is mainly based on a huge imbalance between the limited power of people and unlimited power of governments. Hence, strengthening of civil society in undemocratic states will bear no fruit, if there are no genuine elections to preserve people’s vote. In reality, people might be highly prepared and willing to rule their own government with democratic values, ​​but still unable to impose their will due to massive electoral fraud.

The point which I believe to be absolutely pivotal is the fact that “we the people of United Nations” would not always be able to impose our will on the states, in spite of oppressive or despotic exercise of power by our statesmen. Ill-advisedly, there is a widely held perception that people by themselves can change their own state behavior. To be more specific, some political activists tend to simplify the complex questions such as “why widespread protest against forged elections in Venezuela, Syria and many other countries around the world have not succeeded”? They implicitly suggest that some nations are not brave enough to pay the price for freedom. Some policy-makers also address the issue by referring to inadequacy of internal or international pressures on a nation.

In this regard, the tough economic sanctions imposed on states like Iran, North Korea, and Venezuela is essentially based on an optimistic premise that sanctions would make life harder for the people and eventually lead them to force their government to cooperate with sanctioners. Interesting though they may be, these analyses simply serve to distract international community from addressing the root causes of the issue.

Based on my basic academic knowledge in politics and international relations, I once again reaffirm the position that even if the pressures of international sanctions against a totalitarian state reaches to its highest level, there might be no revolutions, no riots and not even a single notable street protest. Observing life condition of the people in North Korea and Syria, I would argue that when governments be well-prepared (able) and resolute (willing) to use their oppressive power, people’s wide discontent would not matter. In fact, people’s anger and hatred would soon transform into fear and silence if governments decisively suppress the people.

What is the affordable alternative, if on the one hand, sanctions are not advisable due to humanitarian concerns, and on the other hand, people should not be criticized for the lack of resistance against oppression since they are not omnipotent? From my perspective, strengthening international norms on conducting genuine elections would be a sustainable legal solution. In this respect, elections should be gradually and softly excluded from the states’ inclusive control.

 The United Nations, has a valuable experience in providing electoral assistance over the past decades. While currently electoral assistance is provided only at the specific request of the member states, UNGA is continuously promoting the importance of elections observation for enhancing the integrity of electoral processes. In order to establish an international monitoring mechanism to guarantee people’s entitlement to genuine participatory elections, international law needs to enrich the norms on the election monitoring.

In reality, hard law enrichment would be unlikely in the near future because of the states’ dominance in international law, which impedes the capacity of law to regulate the matters that traditionally fall within the sphere of state sovereignty. However, more than seventy years of practice by International Law Commission (see here and here) demonstrate a relatively good track record of codifying and progressive development of international legal norms. Although there are doubts that the governments concede to the ILC drafts, evidences suggest that even unratified ILC instruments have already affected judicial and arbitral decisions and also state practice. The Commission’s draft articles on the state responsibility are an example.

The International Law Commission is not limited to the selection of subjects that could be codified solely in the form of international conventions by international conferences. the ILC soft law instruments such as draft articles, draft guidelines or draft conclusions appear to be as useful as treaties to disseminate a better understanding of the legal system and to provide a practical way to interpret the international commitments. Hence, the ILC enforcement capacity might be used in the same way to softly guide the behavior of states and to stop them trampling on people’s right to genuine elections. Considering international instruments supplied and the growing international involvement in the election monitoring, it seems quite possible that ILC selects the topic in near future to respond to the international community needs. Universal drafted norms could fill a major gap in assessing elections integrity and encourage states to open their doors to international monitoring.

In this regard, the ILC Draft Articles on the Protection of Persons in the Event of Disasters which imposed “duties” on affected States to seek external assistance “specifically from the United Nations”, could provide a suitable precedent for imposing the same kind of duties on the states to accept electoral monitoring. The progressive development of international law by denying states’ right to arbitrarily withheld their consent to external assistance- arguably with no State practice or opinio juris to support any kind of state “duty” to accept foreign assistance- might be regarded as the ILC growing tendency to propose lex ferenda by invoking sociological approaches to international law.

Since the absence of electoral monitoring has resulted in widespread loss of life and great human suffering in many parts of the word, the time is ripe for ILC to protect the persons in the event of electoral irregularities which could seriously disrupt international peace and security. Codifying the electoral duties of states, in the sense of article 18 (2) of the ILC Statute, would be desirable and necessary by virtue of its appropriateness for people’s self-determination and prevention of gross violation of fundamental human rights. Admittedly codification on this issue, will raise tough questions about inconsistencies in constitutional laws of various States, but as ILC truly declared in the draft articles on rights and duties of states, the sovereignty of each State should be subject to the supremacy of international law.

Given the fact that ILC members generally supported the American states’ effort to define democracy in inter-American democratic charter at the ILC 2673rd meeting in 2011, it could be quite plausible for current ILC members to consider a draft on identification of electoral rights and duties as a non-ideological element of democracy. Focusing on a minimalist conception of democracy, centered solely on elections, no one could argue the comeback of so-called liberal internationalism.

It is an undeniable fact that generally democracy is a process, not a project or product could be granted to the people. Yet, there remains a question whether the genuine elections might be regarded as a humanitarian package, granted to all human beings who according to UNDHR even as a last resort would be unable to organize a rebellion against tyranny and oppression. By way of conclusion, unless international law plays a more efficient role in election monitoring through enriching international norms, people’s erga omnes entitlement to genuine elections as a manifestation of the right to self-determination will continuously be infringed by despotic governments.