introduction - ipsa online paper roompaperroom.ipsa.org/papers/paper_30858.pdf · ·...

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)

1LON_IMANAGE:1582278.1

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].



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].



(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).



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.



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.



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.



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.”).



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.



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].



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].



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.”).



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.



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].



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.



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



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].



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.



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).



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).



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.



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).



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.



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.



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.



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.”).



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).



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.



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.

introduction - ipsa online paper roompaperroom.ipsa.org/papers/paper_30858.pdf · ·...

Documents