JUDICIAL INTERPRETATIONS OF DEMOCRACY IN HUMAN RIGHTS TREATIES

The European Convention on Human Rights (ECHR) speaks of the importance of an “effective political democracy” in its Preamble, though it is only in Article 3 of Protocol 1 (P1-3) that we find a right to free elections. This paper discusses the role of “positive obligations” under P1-3. This paper outlines the positive obligations in P1-3 focusing on obligations where the state is required to do more than just change the law. This may mean providing resources or facilities, adopting regulatory frameworks or creating new institutions. The paper highlights specific positive obligations that need to be further developed in the jurisprudence of the European Court of Human Rights (ECtHR). Sometimes these can be developed by analogy with positive obligations recognised in other areas of ECtHR jurisprudence. However, beyond these cases, states should ensure that members of vulnerable and disadvantaged minorities are able to participate in the electoral process and should ensure that dominant political groups cannot abuse their political power to exclude other parties unfairly. This is necessary to realise equal political rights. The second section of this paper sketches some preliminary points about the Strasbourg institutions’ approach to P1-3. After that, the third section identifies circumstances where the ECtHR should apply a more intense scrutiny in P1-3 cases. The fourth, fifth and sixth sections look at positive obligations relating to the right to vote, the right to run for election and the regulation of political parties.

Northern Ireland Legal Quarterly, 2020

Nordic Journal of Human Rights, 2014

Like tackling the mythical hydra, the attempt of defining fragmentation is fraught with peril. It seems that once one solves one head of complexity, two more pop up in its place. The struggle for definition starts with the idea of the existence of a unified legal order, that of international law, which is under threat of shattering under the pressure of divergent "selfcontained" regimes. These regimes, the story goes, have their own law-making and law application rules and mechanisms as well as "rules concerning the consequences of breaches of their respective primary norms". 1 However, once we start looking at how "self-contained" these regimes really are, we immediately notice their inter-relatedness in assumptions, sources, methods etc. both with general international law and amongst themselves. 2 So much for "autonomous systems decoupled from general international law". 3 But this does not cure international lawyers' anxieties, 4 unfortunately, for while these regimes may not be completely separate from international law, they still somehow threaten its unity by their ability to pronounce on issues relevant to international law and to do so in a way that conflicts with each other. In the proverbial state of nature without a hierarchical centre, what is to stop a normative conflict from ensuing, or so the fear goes. Even if "self-contained" regimes do not, as such, exist, regimes certainly do. Of course, pinning down what exactly we mean by a regimeeven a special oneas it turns out is not an easy feat. The International Law Commission found at least three ways in which the term is used: Sometimes violation of a particular group of (primary) rules is accompanied by a special set of (secondary) rules concerning breach and reactions to breach. This is the main case provided for under article 55 of the articles on Responsibility of States for internationally wrongful acts. Sometimes, however, a special regime is formed by a set of special rules, including rights and obligations, relating to a special subject matter. Such rules may concern a geographical area (e.g. a treaty on the protection of a particular river) or some substantive matter (e.g. a treaty on the regulation of the uses of a particular weapon). Such a special regime may emerge on the basis of a single treaty, several treaties, or treaty and treaties plus non-treaty developments (subsequent practice or customary law).

Jus Cogens. A Critical Journal of Philosophy of Law and Politics, 2020

This paper is concerned with the Convention's "democracy clause," that is Article 3 of Protocol No. 1, which provides for the right to free elections. Why should it be described as a "democracy clause" and what is its significance for today? The paper first sketches out the drafting history, which reveals that while the framers were keen to preserve their inherited domestic institutions, they also thought it crucial to promote democracy. The Convention invokes but does not define democracy. It is within the Court's competence to elucidate its meaning. The Court holds that pluralist democracy is the only system compatible with the Convention. This paper argues that Article 3 of Protocol No. 1 further presupposes a representative legislature. It does not require member states to introduce a specific system of elections and representation, but it obliges them to conform to parliamentary democracy. Thus, the Court's model of democracy rests on two pillars: pluralism and parliamentarism. It subscribes to pluralist democracy theories but contradicts the monolithic conception endorsed by Carl Schmitt. The Court's model has the potential to offer a robust account of democracy. Yet, Article 3 of Protocol No. 1 has never lived up to its potential. The Court's relevant jurisprudence is inadequate to address the contemporary antidemocratic shifts that are underway in certain member states. Hence, the paper suggests that the Court's power to apply this clause is not limited to general elections but also extends to presidential elections and referendums.

The final version of this article has been published in Cambridge International Law Journal, Vol. 7 No. 2, December 2018, pp. 225–240 https://doi.org/10.4337/cilj.2018.02.03 This article analyses the doctrine of the European Court of Human Rights about the right of free elections established in Article 3 of the Protocol 1, primary only as a mandate for States and later as a genuine subjective right, with the goal to achieve a solid theory of the right of the free elections in Europe. The article aims to spell out the precise content of the right to free elections in Europe as stipulated by the ECtHR.

Notre Dame L. Rev., 2008

2017

Eszter Bodnár: The level of protection of the right to free elections in the practice of the European Court of Human Rights. In: Helen Hardman - Brice Dickson (ed.): Electoral Rights in Europe. Routledge, 2017. The recognition of the right to free elections as a fundamental right was the result of a long process in the history of democratic countries. Its incorporation into the most important international human rights documents was also preceded by heated debates, mainly because of the contracting states’ attempts to protect their sovereignty. Today, no one questions that electoral rights are fundamental rights and as a result, they demand protection both at national and at international level. In addition to the electoral disputes brought before the traditional national forums (electoral management bodies, ordinary or special courts, constitutional courts), more and more cases are now being taken to international protection mechanisms (most often to the European Court of Human Rights in the context of Europe). The right to free elections became part of the system of the European Convention on Human Rights relatively late. The first judgment was not delivered until 1987 and the ratio of judgments dealing with the right to free elections is very low also today. However, on the one hand, the number is increasing from year to year, and on the other, these decisions’ significance is fundamental to the democratic system of the Council of Europe’s member states. The European Court of Human Rights has played a crucial role in the way Article 3 of Protocol No. 1 is interpreted, which process led from the institutional obligation to protect individual rights. Today nobody is likely to question that the right to vote and the right to stand for election are fundamental rights that can be invoked by individuals. The aim of this chapter is to give an overview of the practice of the European Court of Human Rights and evaluate the level of protection it provides to the right to free and fair elections. It examines which factors explain the Court’s reserved approach towards election-related cases and proposes an argument to justify a more activist approach by the Court.

Ethics & International Affairs, 2005

The period since the Universal Declaration of Human Rights in 1948 has witnessed the rise of an international human rights regime. There has been a shift in international law from state-based treaty obligations to cosmopolitan norms whose subject is individuals and their rights and entitlements under international law. Along with the rise of cosmopolitan norms, conflicts between enactments by states, often through democratic legislatures, of laws and practices that may contradict these norms, has also intensified.The article focuses on one such set of cosmopolitan norms concerning the crossborder rights of immigrants within the context of the European Union. By examining a German Constitutional Court Case which denied long-term resident aliens voting privileges in local and district-wide elections, it illuminates the “paradox of democratic legitimacy.” The rights of foreigners and aliens are an intrinsic aspect of the self-understanding of a democratic people. The demos can alter th...

The issue of the right of citizens to participate in the governance of their states has been the subject of considerable discourse in international law in recent decades. And following the so-called third wave of democratisation that had supposedly swept across the globe, there are claims that political participation has become a right, or is fast becoming a right in international law. This article deals with the subject of the right of citizens to participate in the governance of their countries. It argues that in spite of claims to the contrary, a right to popular participation in governance does not currently exist, and is not emerging, in international law. It further argues that contemporary discourse and practices largely conflate the right to vote in periodic elections with the right to democracy or political participation.