Election Monitoring, International
Christina Binder, Christian Pippan
- Political expression — Right to vote and to be elected — Democracy — Regional co-operation
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1. General Aspects
1 In its current form, international election monitoring has appeared on the scene of international affairs in the late 1980s. Its emergence as a widely accepted and (today) almost routinely practised international activity was closely related to the expansion of the so-called ‘third wave’ of democracy towards Latin America, parts of Asia, and Eastern Europe during the 1980s and early 1990s, coupled with the overall transformation of the geopolitical climate after the end of the Cold War (1947–91). Starting around the same time, the growing engagement of the international community in support of democracy throughout the world has led to an unprecedented focus on elections as a key—though by no means sufficient—element of democratic governance (see also Democracy, Right to, International Protection). In line with global and regional human rights instruments, the jurisprudence of human rights treaty bodies and relevant documents of international governmental and non-governmental organizations, the holding of free elections has come to be seen not only as an important means for the implementation of the right of citizens to political participation (see also Elections, Right to Participate in, International Protection), but also as the most reliable method of determining ‘the will of the people’ (Art. 21 (3) Universal Declaration of Human Rights  [‘UDHR’]) within an organized, territorially defined political community. As such, elections are today viewed as international events. Their monitoring by impartial foreign experts and observers underscores the international community’s interest in the achievement of truly democratic elections as much as it serves as a tool for adding legitimacy to the electoral process, particularly in new or restored democracies and in countries in transition to democracy.
2 The Declaration of Principles for International Election Observation, a document endorsed, together with a Code of Conduct for International Election Observers, on 27 October 2005 by the United Nations (UN) and nearly two dozen regional and non-governmental organizations, defines international election observation as:
the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis (at para. 4).
3 This definition is a useful starting point, yet further clarification is needed. Firstly, it is one of the main characteristics of international election observation and monitoring that the assessment of domestic laws, processes and institutions related to the conduct of elections is carried out by external actors—predominantly inter-governmental and foreign non-governmental organizations—against international norms and standards for genuine democratic elections (see paras 18–21 below).
4 Secondly, in the context of international election monitoring the term ‘election’ has to be understood in a wider sense as generally referring to popular consultation processes, including, as the case may be, plebiscites and referenda, at the national, provincial, or local level of government (see also Referendum). At the same time, however, not every routine electoral exercise everywhere in the world attracts international attention. While international actors, such as the Council of Europe (COE) and the Organization for Security and Cooperation in Europe (OSCE), frequently monitor elections even in established democracies, the focus of relevant international activities is usually directed at ‘transitional elections’, potentially marking a move from authoritarian or semi-authoritarian regimes to more democratic systems of government; ‘post-conflict elections’, following the end of civil wars or other violent internal conflicts; and ‘consolidating elections’, held in fledgling democracies during the prolonged period of consolidation of democratic values, institutions, and processes (see also Transitional Justice in Post-Conflict Situations).
5 Thirdly, according to the degree of international involvement in the electoral process and the period of time over which the activity takes place, a distinction may be drawn on the conceptual level between observation and monitoring. As traditionally understood, observation is somewhat less intrusive; it limits international observers to mere recording and reporting and focuses primarily on election day and the days immediately surrounding the vote cast. Monitoring, on the other hand, covers the entire election cycle, ie the pre-election phase, election day, and the post-election period, and enables international actors to offer recommendations, accessible to the public, for improving the process and correcting identified deficits. However, as exemplified, for instance, by the Declaration of Principles for International Election Observation, this distinction is by no means applied rigorously; in today’s practice, the two terms are generally used interchangeably.
6 Finally, both election observation and election monitoring can be distinguished from other, either significantly less or significantly more comprehensive forms of electoral intervention by international actors. On one side of this spectrum, one would find the provision of financial and technical assistance, which does not involve the deployment of external observers and may include, inter alia, legal and logistical advice, poll-worker training, civic education, etc. The supervision and, even more so, the organization of elections are to be found at the opposite end of the spectrum. In case of election supervision an international actor, usually the UN or a regional organization acting under its authority, is entitled to oversee the entire electoral process, beginning with the drafting of appropriate electoral laws, through voter registration and the election campaign, to the vote cast, vote count and tabulation of results. If the UN disapproves the process or a particular aspect of it, the competent electoral management body (‘EMB’) is required to make the necessary adjustments. In exceptional situations, the UN may even be called to organize and conduct elections itself; thus assuming for that purpose governmental authority, either because the State or territory concerned lacks an effective government altogether or because domestic authorities have expressly conferred this role on the organization (see also International Administration of Territories).
B. Historical Development and Context
7 The earliest examples of ‘elections’ monitored by foreign observers can be found in the second half of the 19th century, beginning with the dispatch of representatives from major European powers to monitor the plebiscite in Moldavia and Walachia in 1857. Further examples from this period include the observation of plebiscites on the Ionian Islands (1863), St. Thomas and St. John (1866), and St. Bartholomew (1877), and in Norway (1905). It was not until the end of World War I, however, that a more consistent approach to the monitoring of popular consultation processes by external actors began to emerge. Under the Versailles Peace Treaty (1919) and the Venice Protocol the so-called Allied Plebiscite Commission oversaw plebiscites in selected European territories of mixed ethnic composition, thereby generating the first electoral minimum standards defined by an international body. Under this scheme, internationally monitored plebiscites were held in Schleswig (1920), Allenstein and Marienwerder (1920), the Klagenfurt Basin (1920), Upper Silesia (1921), Sopron (1921), and the Saar Territory (1935).
2. Election Monitoring under the United Nations System
8 After World War II, the UN soon emerged as the leading actor in the field of international election monitoring. The first elections supervised by the UN were those in the southern (United States of America-controlled) part of the Korean Peninsula in 1948 (see also Korea). While, at the time, this was seen as an exceptional measure justified by the particular circumstances of the case, the UN took on a decidedly more systematic and coherent role in election monitoring during the era of decolonization. In keeping with its responsibilities under Chapters XI and XII United Nations Charter, the UN supervised the holding of referenda, plebiscites and elections in nearly 30 non-self-governing territories and trust territories between 1956 and 1989. Each mission required the prior consent by the colonial power administering the territory and an authorization by the UN General Assembly (‘UNGA’; United Nations, General Assembly), the UN Security Council (‘UNSC’; United Nations, Security Council) or the UN Trusteeship Council. While the administering power remained responsible for the organization and conduct of the vote, the UN mission or commissioner was mandated to supervise the electoral process and to ensure that the people of the territory in question would indeed choose in ‘complete freedom’ the political status that they desired (UNGA Res 742 [VIII] [27 November 1953] 22).
9 UN supervision of democratic acts of self-determination aimed at overcoming colonialism and the subjection of peoples to alien domination culminated in the 1989 mission to Namibia, which also marked the beginning of a more comprehensive UN involvement in elections in the context of complex peacekeeping (Peacekeeping and Peace Enforcement) and peacebuilding operations. The mission was mandated by the UNSC to ensure the independence of Namibia through free and fair constituent assembly elections, which were administered by South Africa, yet controlled and supervised by the UN. Soon after, with the acceptance of a request by the Nicaraguan government to monitor the country’s 1990 presidential elections, the UN entered a third phase of engagement in electoral affairs: the verification of electoral processes in independent States. In the following years, a number of high-profile verification missions were undertaken, often in response to specific electoral provisions in peace accords ending years of internal conflict. Although the UN Secretary-General initially emphasized that the UN would only monitor elections in sovereign States if the case involved a threat to the peace in the region (Peace, Threat to), subsequent practice frequently deviated from this postulate. As early as in October 1990, the UNGA agreed to monitor elections in Haiti (see also Haiti, Conflict), notwithstanding the absence of any actual threat to regional peace and security at the time. In two cases—Cambodia (1993) (Cambodia Conflicts [Kampuchea]) and East Timor (1999–2002)—the UN also went beyond the usual confines of a verification mission and accepted direct responsibility for the organization and conduct of elections as a component of major peace- and nation-building operations.
10 Unlike colonial era monitoring, with its primary focus on the effective realization of the right of dependent peoples to external self-determination, the new, post-colonial generation of UN election involvement was—and is still—directed at the support and consolidation of internal democratization processes. It is hardly surprising that the expansion of UN electoral assistance to sovereign States has raised concern by certain Member States, particularly by developing countries, regarding potential interference in their internal affairs (see also Domaine réservé). At the initiative of some of these countries, the UNGA has in the past repeatedly adopted resolutions entitled ‘Respect for the principles of national sovereignty and diversity of democratic systems in electoral processes’ (‘Respect Resolutions’), which affirmed, inter alia, ‘the right of peoples to determine methods and to establish institutions regarding electoral processes and, consequently, that there is no single model of democracy or of democratic institutions’ (see eg UNGA Res 60/164 [16 December 2005] para. 3). As such, these resolutions were conceived, by the countries supporting them, as a direct response to another resolution, regularly adopted by the UNGA since its forty-fourth session under the title ‘Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization’ (‘Enhancing Resolutions’). Notably, however, the adoption of the ‘Respect Resolutions’ was viewed with scepticism by a considerable number of (mainly Western) States, which routinely expressed their disapproval by abstaining or casting a nay vote. By contrast, the ‘Enhancing Resolutions’ are usually supported by an overwhelming number of Member States present in the respective UNGA meeting (see eg UNGA Res 72/164 [25 January 2018]). Indeed, no further ‘Respect Resolution’ has been introduced since 2005, while the Assembly continues to adopt ‘Enhancing Resolutions’ on a biannual basis.
11 The regulatory and institutional framework for the provision of UN electoral assistance was set up in the early 1990s (UNGA Res 46/137 [17 December 1991]) and is still in operation today. As a matter of principle, the UN provides electoral assistance only upon a written invitation by the State in which the elections are held, or on the basis of a mandate from the Security Council or the UNGA. The UN Electoral Assistance Division in the Department of Political Affairs is responsible for assisting the Under-Secretary-General for Political Affairs, who serves as the ‘focal point’ for all UN electoral assistance activities. In carrying out its mandate, the Electoral Assistance Division recommends to the focal point general guidelines for UN electoral support, reviews requests for assistance from UN Member States, and advises on the exact form and design of relevant UN activities. Since the mid-1990s, most of the electoral support provided by the UN has been in the form of technical assistance or co-ordination and support of international and domestic observers. The organization thereby assists relevant domestic and international actors in legal, administrative, and operational matters but does not deploy observers or issue a statement on the electoral process itself. In exceptional situations (eg in Afghanistan in 2004, or in Iraq in 2005), UN experts may even be embedded directly within national electoral administrations. In such cases, the responsibility for the orderly conduct of elections is shared by the State concerned and the UN. Fully-fledged UN electoral observation, on the other hand, is nowadays extremely rare. Similarly, the UN will become involved today in the ‘verification’ or ‘certification’ of elections only if special circumstances so require—as, for example, in case of the 2008 Constituent Assembly election in Nepal, or the 2010 presidential and 2011 parliamentary elections in Côte d’Ivoire. As far as elections in the area of the African Union (AU), the Organization of American States (OAS), and the OSCE are concerned, the UN now generally refers requests for observers to the competent regional organization and limits its own role, if requested, to technical assistance.
3. Election Monitoring by Other International Actors
12 Beginning in the early 1990s, a number of regional and sub-regional organizations entered the (then) new field of international election monitoring in independent States. Among them, the OAS, the OSCE, the COE, the European Union (‘EU’), and the Commonwealth soon emerged as the most active, often complementing and even replacing the relevant electoral activities of the UN. With the adoption of the 2002 ‘Durban Declaration on the Principles Governing Democratic Elections in Africa’, election monitoring by the AU likewise experienced exponential growth. The OAS, the OSCE, the Commonwealth, and the AU thereby generally limit their engagement to Member States. In principle, the same holds true for electoral assistance and election monitoring provided by sub-regional organizations, such as—in case of Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC), and the Southern African Development Community (SADC), or—in case of Latin America—the Caribbean Community (CARICOM) and the Union of South American Nations (‘UNASUR’). By contrast, the Parliamentary Assembly of the COE has in the past observed elections in Member States as well as in States that were candidates for membership. The EU, for its part, is the only organization that monitors elections exclusively in non-member countries, mainly in Africa and Latin America, but, if so requested, also in the Middle East, Asia, and the Pacific. Unlike Europe, the Americas, and Africa, Asia evidently still lacks a ‘homegrown’ regional organization engaging in electoral assistance across the continent. To be sure, in recent years both the Commonwealth of Independent States (‘CIS’) and the Shanghai Cooperation Organization (‘SCO’) have begun to deploy election observers to countries in Eastern Europe and Central Asia. However, given that the respective missions were frequently accused of deviating from established international standards, election monitoring by these organizations has so far remained a rather controversial exercise (see paras 24–25 below).
13 With respect to the OSCE, the COE, the OAS, and the AU, as well as the Commonwealth, the monitoring of electoral processes in Member States is directly linked to an overall strong commitment to democracy, including the holding of periodic and genuine elections. Induced by their extensive engagement in this area, these organizations have established specific institutional mechanisms to operationalize and co-ordinate their efforts in support of elections and democratic governance. Based on the Charter of Paris for a New Europe, the OSCE, then Conference on Security and Co-operation in Europe (‘CSCE’), created an Office for Free Elections as early as in 1990. In 1992, the office was transformed into the Office for Democratic Institutions and Human Rights (‘ODIHR’), which was endowed with an expanded mandate to reflect fully the wide-ranging commitments of OSCE Member States in the areas of human rights, democracy and rule of law. Since its inception, ODIHR has been engaged in the observation of elections and—to a lesser extent—the provision of technical assistance, particularly in Eastern and South-Eastern Europe, the Caucasus, and Central Asia. Within the OAS, the Unit for the Promotion of Democracy was established in 1991, and upgraded to a department in 2005, to oversee OAS electoral assistance and observer missions and to conduct a variety of programmes to strengthen democracy in the Americas. On the part of the AU, the Democracy and Elections Assistance Unit (‘DEAU’) within the Department of Political Affairs of the AU Commission was installed in 2006. It is entrusted with the overall coordination and implementation of AU electoral assistance and the organization’s overall strategy to promote democracy and democratic elections in Africa. As already indicated, the EU—in practice clearly one of the largest regional players in international election observation and monitoring—provides electoral assistance (including comprehensive observer missions) primarily outside the OSCE region as part of its worldwide human rights and democratization policy.
14 In addition to inter-governmental organizations, a range of international non-governmental organizations—such as The Carter Center, the National Democratic Institute, the International Foundation for Electoral Systems, the European Network of Election Monitoring Organizations, the Inter-American Union of Electoral Organizations, the Electoral Institute for Sustainable Democracy in Africa, and the Asian Network for Free Elections—are also engaged in the observation and monitoring of elections. The Stockholm-based International Institute for Democracy and Electoral Assistance (‘International IDEA’), on the other hand, does not carry out or co-ordinate monitoring missions in its own capacity. Founded in 1995 as a hybrid organization comprised of governmental as well as non-governmental members, International IDEA aims, inter alia, to develop and promote rules and guidelines on the organization, conduct, and accountability of democratic elections and to provide knowledge and expertise on these and other democracy-related issues.
C. Applicable Rules
1. Regulatory Framework and Methodology
15 Due to the plurality of actors involved, the regulatory framework governing international election monitoring is not based on one single text or document. Rather, it is rooted in a body of commitments and practices developed, in particular, by the UN and regional inter-governmental organizations engaged in respective monitoring and observation activities. Relevant documents include, inter alia, the biannual Enhancing Resolutions of the UNGA, including the accompanying reports by the UN Secretary-General, the 1990 CSCE Copenhagen Document (at paras 6–8), the 2000 EC Communication and 2001 Council Conclusions on EU Election Assistance and Observation, the 2001 Inter-American Democratic Charter (at Arts 23–25), the 2002 OAU/AU Declaration on the Principles Governing Democratic Elections in Africa (at paras II–V), and the 2002 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States. The agreements concluded between the deploying organization and the host State outline the terms of reference for a specific election observation mission and usually take the form of a memorandum of understanding. A notable exception is the OSCE, which generally considers the 1990 Copenhagen Document a sufficient basis for its election observation missions. Finally, the Declaration of Principles for International Election Observation deserves special mention as the first common attempt by many of the relevant actors in the field to formulate a coherent methodology regarding the observation/monitoring of elections in sovereign States.
16 Despite the plurality of sources dealing with international election monitoring, a number of standard rules can be deduced from existing documents and practice. First, the consent of the government of the State concerned is a precondition for the deployment of observers. Second, a (full-scale) observation mission is normally not deployed to a country in which the minimum requirements for a free and fair electoral process are clearly absent and the presence of observers is likely to be interpreted as lending legitimacy to what is in fact an undemocratic process (see paras 22–24 below). Third, the deploying organization has to be given due time—at least three to four months before election-day—for a thorough preparation of the mission. Fourth, the host State has to indicate its willingness to cooperate constructively with the mission, which includes the guarantee of a timely accreditation of observers, their freedom of movement throughout the country, their unimpeded access to all persons concerned with the elections, as well as the acceptance of the right of the mission to issue public statements. Fifth, the sending organization commits itself to maintain impartiality, objectivity and independence during the entire monitoring period, which implies that foreign observers have to respect the laws of the host country and must refrain from in any way obstructing or directly interfering in the electoral process.
17 The mandate of election observation missions diversified over time. In more recent observation practice, limited (technical) or targeted missions are frequently deployed. They look into areas of particular interest in a specific country, such as voter registration, e-voting, campaign finance, or absentee, early, or postal voting (see para. 22 below). Conversely, in order to arrive at an accurate and comprehensive assessment of the respective election, the mandate of traditional/full-scale international monitoring missions is generally broad in terms of subject matter, time frame, and geography. In case of full-scale missions, observers, apart from evaluating the election’s organization and conduct as such, also take into account the overall legal and institutional framework as well as the political environment in the country concerned. Regarding the time frame, rather than confining themselves to the day of the election, modern-type observer missions cover the entire pre- and post-election period. Accordingly, long-term observers are deployed, usually for around six weeks, to observe the election campaign, registration of voters, media access of contestants, etc, before election day, as well as the complaints and review process afterwards. In addition, a larger number of short-term observers is later deployed, usually for one to two weeks, to focus primarily on the election day, especially with regard to the preparation of polling stations, the vote cast, the vote count and the tabulation of results. An extensive geographic coverage, ideally throughout the country, is thereby sought. To maximize their impact, the mission’s preliminary findings are publicized immediately after the elections, whereas a comprehensive final report, which may also contain recommendations for improvements, is published a few weeks later. The implementation of these recommendations has recently been furthered by increased follow-up activities by organizations such as the OSCE/ODIHR, the COE, and the EU (see below para. 28). This approach reflects a holistic view of elections which covers the whole electoral cycle. Such a comprehensive ‘electoral cycle approach’ is an essential component of modern election observation/monitoring methodology.
2. Evaluation Standards
18 In the early phase of modern international election monitoring, observers primarily assessed whether elections were free and fair, without explaining in detail the deficiencies and/or the progress observed. This ‘pass or fail test of legitimacy’ (Bjornlund) left little space for nuances. It was gradually given up during the 1990s, in parallel with a clarification of the applicable set of obligations and commitments. The core of this set is drawn from international human rights instruments, many of which declare elections as central to realizing the citizens’ right to political participation. This refers, particularly, to Art. 21 UDHR, Art. 25 International Covenant on Civil and Political Rights (1966), Art. 3 Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 23 American Convention on Human Rights (1969), and Art. 13 African Charter on Human and Peoples’ Rights (1981).
19 The relevant provisions enshrined in these documents, combined with their interpretation by the respective treaty bodies, essentially provide that elections have to be periodic and genuine (the latter being generally understood today as requiring, inter alia, the admission of opposition candidates on equal terms), based on universal and equal suffrage, and held by secret ballot. Moreover, elections must guarantee the free expression of the will of the electors, implying, at a minimum, the absence of undue intimidation or coercion of voters. Further electoral standards can be drawn from specialized conventions banning discrimination on the basis of race, gender or disability, such as Art. 5 (c) International Convention on the Elimination of all Forms of Racial Discrimination, Arts. 7 and 8 Convention on the Elimination of all Forms of Discrimination against Women, and Art. 29 Convention on the Rights of Persons with Disabilities. Additionally, international human rights law provides for a number of guarantees functionally related to free and fair elections, such as the rights to freedom of expression, assembly and association.
20 The electoral requirements contained in international human rights instruments are reiterated, refined and complemented by various commitments regarding transparent, free, and fair electoral processes adopted within the framework of international organizations, particularly the OSCE, the COE, the OAS, and the AU. The members of these organizations have not only (re)affirmed their general commitment to democracy but have also adopted detailed election-related standards and guidelines (see paras 15–17 above). At the expert/technical level, the Venice Commission of the COE identified a set of principles of European heritage in electoral matters in the 2002 Code of Good Practice in Electoral Matters. Further standards are compiled in various operational documents, such as the OSCE/ODIHR Election Observation Handbook or the Handbook for European Union Election Observation.
21 In a nutshell, when evaluating elections, most international actors consider whether adherence to the following minimum standards could be ascertained: universal and non-discriminatory voter registration; effective guarantee of equal voting rights; creation of a level playing field for parties and candidates, including adequate access to the media and to public funds; transparency in campaign and political party finance; existence of an adequate legal framework and a neutral and impartial election administration, usually implying the establishment of an independent electoral commission; the freedom of voters to form and express their opinion without intimidation; the secrecy of the vote; correct counting of votes and publication of the results; guarantee of an effective complaints and appeals procedure; and due installation in office of those validly elected. At the same time, however, monitoring missions have to take diverging country situations and varying stages in the process of democratic transition into account. This does not mean applying international standards selectively. Rather, it means refraining from stating in a simple ‘yes or no’ manner whether a particular election has met the relevant standards but, instead, pointing out in a more nuanced way which specific areas of the electoral process require improvement.
D. Special Problems
22 It was already indicated that more comprehensive election observation missions are mainly deployed to semi-authoritarian States, countries in transition to democracy, and new or restored democracies, rather than to consolidated democracies. Still, elections, or certain aspects thereof, may fail to meet international standards even in established democracies. Starting in the mid-1990s, therefore, OSCE/ODIHR began to send smaller-scale Election Assessment Missions to consolidated democracies within its area. Today, it is standard practice to deploy targeted expert missions to established democracies in the OSCE region to look into specific electoral challenges, such as the employment of new voting technologies or the increased reliance on absentee, early, or postal voting. Apart from its potential to improve domestic electoral processes, this practice also helps to dispel concerns, raised by some countries, regarding the existence of double standards in the field of international election monitoring.
23 It may sometimes prove difficult rigorously to apply the principle, subscribed to by most organizations, that a mission shall not be deployed if basic preconditions for the holding of elections in accordance with international standards are evidently lacking in the country concerned. Here, the risk that complying with a government’s request to send international observers may be interpreted as giving undeserved legitimacy to a flawed electoral process has to be balanced against the potential benefits of engaging the country in question in an ongoing dialogue and of keeping the process under international scrutiny. As a middle course, international organizations generally opt for reduced missions, comprising only a small number of long-term observers (eg OSCE/ODIHR in case of the 2015 presidential elections in Uzbekistan ) or electoral experts (eg OSCE/ODIHR in case of the 2017 presidential elections in Turkmenistan).
24 Coordination failures, duplications, and contradictory policies on the part of the various actors engaged in international election monitoring are further areas of concern. While cooperation among international organizations has improved in recent years, which has occasionally even led to joint monitoring missions (see also Cooperation, International Law of), diverging methodologies, a fight for visibility, and distinct political agendas continue to adversely affect the legitimacy and impact of the monitoring exercise in some cases. Examples include the diverging statements of CIS and OSCE/ODIHR observers with regard to parliamentary elections in Uzbekistan (2004), Tajikistan (2005), and Russia (2011); conflicting statements of SCO and OSCE/ODIHR observers concerning the presidential elections in Uzbekistan (2016); and the differing assessments by European and certain African observer groups of the 2016 general elections in Uganda.
25 The deployment, by some organizations, of observers who do not adhere to a consistent methodology and do not take into account the full range of internationally accepted electoral standards clearly threatens to undermine the credibility of international election monitoring in general. Moreover, the appreciation by ‘shadow’ observation groups, or ‘pseudo-observers’, of elections judged to be flawed by independent and professional observers allows ‘illiberal’ and (semi-)authoritarian regimes to cherry-pick preferred evaluations while ignoring more critical assessments, thereby deliberately misleading domestic voters as well as the international public.
26 The relationship between international and domestic observers also remains in need of improvement. Despite their important role in promoting a broader understanding of the basic requirements of genuine elections in their societies, and notwithstanding recent efforts by some organizations (particularly the EU) to further reach out to domestic groups, domestic observers do, in most cases, still not receive sufficient attention and support from international organizations.
27 Existing international obligations and commitments, though gradually refined and expanded in recent years, still fail to tackle the entirety of actual as well as emerging challenges with respect to genuine elections. Critical areas include, for example, the misuse of administrative resources and campaign and political party financing, as well as the full inclusion of vulnerable groups, such as disabled persons (Disabled People, Non-Discrimination of), persons belonging to national minorities (Minorities, International Protection), and internally displaced persons (IDPs). Furthermore, the formulation of additional standards may be necessary to cope with challenges arising from new technologies, such as e-voting.
28 While there is increased emphasis on follow-up activities by international organizations such as the EU, OSCE/ODIHR, and the COE, the follow-up to international election observation or monitoring missions overall remains a thorny issue. This becomes particularly evident when a mission’s overall assessment of the election it was sent to observe is negative. In some cases, the resulting loss of international renommée may by itself be reason enough for the government concerned to bring the country’s legal and institutional framework in line with international standards. More often than not, however, additional follow-up activities will be needed to reduce the risk of insufficient or even non-existent implementation of the relevant findings and recommendations of international observer missions. Such activities may include the provision of legal expertise on the drafting of new electoral laws; technical advice on specific electoral components, such as the introduction of new voting technologies; or enhanced support to domestic observers.
29 If a government openly defies the findings of a monitoring mission, further measures may be considered by the sending organization as well as the wider international community. The March 2006 presidential elections in Belarus may be cited here as a case in point. After OSCE/ODIHR had found the elections to be fundamentally flawed, the EU Council adopted restrictive measures, including a visa ban and the freezing of assets, against the Belarusian leadership and persons ‘who are responsible for the violations of international electoral standards’ (Council Common Position 2006/276/CFSP ). More recent examples include sanctions imposed by the US government following Venezuela’s ban of election observers in the context of the country’s 2017 Constituent Assembly elections, as well as targeted US measures against the head of Nicaragua’s Supreme Electoral Council in response to alleged electoral fraud in the context of the country’s 2016 presidential elections. Ultimately, however, these examples point to exceptions rather than to any kind of rule. Efforts at establishing a more coherent and consistent follow-up to elections considered to be fraudulent or otherwise gravely ‘unfair’ consequently need to remain on the agenda of international organizations and other actors interested in meaningful international election observation and monitoring.
30 Despite some shortcomings and limitations, international election monitoring has contributed significantly during the past three decades to giving meaning to the right to political participation and to ensuring its effective realization in a considerable number of countries. Moreover, the broad acceptance of international election monitoring after the end of the Cold War has helped to make domestic electoral processes, as well as—more generally—the transition to and/or consolidation of democracy within States, legitimate concerns of the international community. It thus had, and still has, its share in the ongoing revision of traditional conceptions of national sovereignty. Occasional attempts by some States to limit the influence of international election observers, such as repeated efforts by Russia at restricting the autonomy of OSCE/ODIHR observers, do not obstruct the overall picture, but rather confirm it.
31 Provided that it is carried out in a truly independent and impartial way, international election monitoring is also likely to contribute to improving the quality of domestic elections. First, the presence of international observers makes it more difficult for incumbent rulers to hide fraudulent practices and, thus, will normally increase the trust of the electorate in the electoral process. Second, the assistance and advice provided in the course of a monitoring mission support national authorities in bringing elections closer to international standards. Third, an international monitoring mission’s assessment constitutes a yardstick for the people concerned, as well as for the international community, to judge the fairness—and, hence, the legitimacy—of an electoral process and its outcome. Accordingly, a mission’s findings will either facilitate a peaceful installation in office of candidates elected in accordance with international standards, or support the contesting of results in cases of fraud.
32 This being said, one has to recall that elections do not equate democracy. They are only one component of what the UNGA has identified on various occasions as ‘essential elements of democracy’ (see eg UNGA Res 59/201[20 December 2004] para. 1). On its own, therefore, the holding of free elections at regular intervals is hardly conclusive of a country’s overall democratic performance. Yet, as former UN Secretary-General Kofi Annan once aptly put it: ‘[W]hile democracy must be more than free elections, it is also true…that it cannot be less’ (UN Press Release SG/SM/7467 [27 June 2000]).
- G van Haegendoren ‘International Election Monitoring’ (1987) 20 RBDI 86–123.
- WM Reisman ‘International Election Observation’ (1992) 4 PaceYBIntlL 1–48.
- Y Beigbeder International Monitoring of Plebiscites, Referenda and National Elections: Self-determination and Transition to Democracy (Nijhoff Dordrecht 1994).
- GH Fox ‘Multinational Election Monitoring: Advancing International Law on the High Wire’ (1994–95) 18 FordhamIntlLJ 1658–67.
- 5J Elklit and P Svensson ‘What Makes Elections Free and Fair?’ (1997) 8 Journal of Democracy 32–46.
- M Satterthwaite ‘Human Rights Monitoring, Elections Monitoring and Electoral Assistance as Preventive Measures’ (1997–98) 30 NYUJIntlL&Pol 709–92.
- J Abbink and G Hesseling (eds) Election Observation and Democratization in Africa (Macmillan Basingstoke 2000).
- H Balian ‘Ten Years of International Election Assistance and Observation’ (2001) 12 HelsinkiMonit 197–209.
- GH Fox ‘Election Monitoring: The International Legal Setting’ (2001) 19 WisIntlLJ 295–319.
- JA Glidden ‘Election Monitoring, Technology and the Promotion of Democracy: A Case for International Standards (2001) 19 WisIntlLJ 353–67.
- VU Hinz and M Suksi Election Elements: On the International Standards of Electoral Participation (Institute for Human Rights Turku 2003).
- EC Bjornlund Beyond Free and Fair: Monitoring Elections and Building Democracy (Woodrow Wilson Center Press Washington DC 2004).
- R Ludwig ‘The UN’s Electoral Assistance: Challenges, Accomplishments, Prospects’ in E Newman and R Rich (eds) The UN Role in Promoting Democracy: Between Ideals and Reality (United Nations University Press Tokyo 2004) 32–61.
- A Tostensen ‘Election Observation as an Informal Means of Enforcing Political Rights’ (2004) 22 Nordisk Tidsskrift for Menneskerettigheter 330–44.
- VY Ghébali ‘Debating Election and Election Monitoring Standards at the OCSE: Between Technical Needs and Politicization’ (2005) 11 OSCEYbk 215–29.
- B Haller ‘Election Observation by the Parliamentary Assembly of the Council of Europe (PACE)’ (2005) 26 HRLJ 160–66.
- J Lindblad and M Suksi On the Evolution of International Election Norms: Global and European Perspectives (Institute for Human Rights Turku 2005).
- A Santa-Cruz ‘Constitutional Structures, Sovereignty, and the Emergence of Norms: The Case of International Election Monitoring’ (2005) 59 IntlOrg 663–93.
- GS Goodwin-Gill Free and Fair Elections (2nd edn Inter-Parliamentary Union Geneva 2006).
- M Meyer-Resende ‘Exporting Legitimacy: The Record of EU Election Observation in the Context of EU Democracy Support’ (CEPS Brussels 2006).
- C Binder ‘International Election Observation by the OSCE and the Human Right to Political Participation’ (2007) 13 EPL 133–58.
- S Hyde ‘How International Election Observers Detect and Deter Fraud’ in RM Alvarez TE Hall and S Hyde (eds) Election Fraud: Detecting and Deterring Electoral Manipulation (Brookings Institution Washington DC 2008) 201–15.
- M Meyer-Resende ‘EU Election Observation: Achievements, Challenges’ (2008) European Parliament Briefing Paper.
- C Binder ‘International Electoral Support: Challenges and Added Value’ (2009) 13 MaxPlanckUNYB 213–46.
- F Evers ‘OSCE Election Observation: Commitments, Methodology, Criticism’ (2009) 15 OSCEYbk 235–55.
- VY Ghébali ‘Free and Fair Elections’ in V Chetail (ed) Post-Conflict Peacebuilding: A Lexicon (OUP New York 2009) 138–46.
- A van Aaken and R Chambers ‘Accountability and Independence of International Election Observers’ (2009) 6 IntlOrgsLRev 541–80.
- J Misk ‘Standardizing the Principles of International Election Observation’ (2010) 43 VandJTransnatlL 763–811.
- S Hyde The Pseudo-Democrat’s Dilemma: Why Election Monitoring Became an International Norm (Cornell University Press Ithaca NY 2011).
- C Pippan ‘Democracy as a Global Norm: Has it Finally Emerged?’ in M Happold (ed) International Law in a Multipolar World (Routledge Abingdon 2012) 203–23.
- JG Kelley Monitoring Democracy: When International Election Observation Works, and Why It Often Fails (Princeton University Press Princeton 2012).
- P Merloe ‘Election Monitoring vs. Disinformation’ (2015) 26 Journal of Democracy 79–93.
- Norwegian Centre for Human Rights ‘Special Issue: International Election Observation’ (2017) 35 ActScandJurisGent 307–427.
- African Union ‘African Charter on Democracy, Elections and Governance’ (adopted 30 January 2007) <https://au.int/en/treaties> (1 March 2018).
- African Union ‘Guidelines for AU Electoral Observation and Monitoring Missions’ (adopted 8 July 2002) AU Doc EX.CL/91 (V) Annex II.
- African Union ‘OAU/AU Declaration on the Principles Governing Democratic Elections in Africa’ (adopted 8 July 2002) AU Doc AHG/Decl 1 (XXXVIII) (Durban Declaration).
- Commonwealth of Independent States ‘Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States’ (adopted 7 October 2002) <http://www.venice.coe.int/webforms/documents/?pdf=CDL-EL(2006)031rev-e> (1 March 2018).
- Conference on Security and Co-operation in Europe ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE’ (29 June 1990) (1990) 29 ILM 1305.
- Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers (27 October 2005) <https://www.ndi.org/DoP>.
- European Commission for Democracy Through Law (Venice Commission) ‘Code of Good Practice in Electoral Matters’ (adopted 5–6 July and 18–19 October 2002) CDL-AD(2002)023.
- European Union ‘Communication from the Commission on EU Election Assistance and Observation’ (11 April 2000) COM(2000) 191 final.
- European Union ‘Council Conclusions on Election Assistance and Observation’ (adopted 31 May 2001) EU Doc (Council) 9990/01 (26 June 2001).
- European Union ‘EC Methodological Guide on Electoral Assistance’ (Brussels 2006) <https://eeas.europa.eu/sites/eeas/files/ec_methodological_guide_on_electoral_assistance.pdf> (1 March 2018).
- Inter-American Democratic Charter (adopted 12 September 2001) 40 ILM 1289.
- Organization for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights Election Observation Handbook (6th edn OSCE/ODIHR Warsaw 2010).
- Organization of American States Manual for OAS Electoral Observation Missions (Washington DC 2007) <http://www.oas.org/en/spa/docs/Manual_Misiones_publicado_en.pdf> (1 March 2018).
- UNDP ‘Electoral Assistance Implementation Guide’ (2007) <http://content-ext.undp.org/aplaws_publications/2219667/UNDP-Electoral-Assistance-Implementation-Guide.pdf> (1 March 2018).
- UNGA ‘Report of the Secretary-General: Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization’ (1 August 2017) UN Doc A/72/260.
- United Nations Focal Point for Electoral Assistance ‘Principles and Types of UN Electoral Assistance’, Policy Directive (adopted 11 May 2012) UN Doc Ref FP/01/2012.