lawyers in India

International Status the Right to Vote

Written by: Manish Lakhawat - 4th year student of Hidayatullah National Law University, Raipur, Chhattisgarh
Constitutional Lawyers in India
Legal Service
  • The right to vote is a well-established norm of international law. Significant international treaties, including the International Covenant on Civil and Political Rights and regional agreements such as the American Convention on Human Rights, enshrine citizens' claim to universal and equal suffrage. Regional human rights systems in Europe and the Americas have mechanisms to enforce the right to vote that have been applied in a limited fashion.

    One hundred and eight out of the 119 electoral democracies surveyed constitutionally guarantee the right of their citizens to elect their political representatives.2 In the last three decades—a period of time in which we have witnessed an astonishing increase in the number of politically free states—every single new constitution has established a citizen's entitlement to vote. The language of these constitutional directives fall along a broad spectrum—on one end are those that simply establish the right of citizens to vote for constitutionally defined electoral positions, on the other end are those constitutions which not only guarantee universal suffrage, but also stipulate that that this fundamental right exists at every level of government and/or curb the ability of the government to reduce the size of the electorate.

    Every democratic state, however, restricts who can vote.3 Some constitutions delineate those who are deemed ineligible for the franchise (the young, prisoners, the mentally incapable, etc.), while others identify the courts or the legislature as the branch of government responsible for determining citizens' fitness to take part in elections. Thirty nine percent of democratic constitutions which contain a right to vote grant legislatures the power to determine those who are eligible.
    Constitutional right to vote articles provide individuals a powerful tool with which to challenge a state action or state inaction that impedes voters. Yet, right to vote provisions are not a cure all. The courts we examined have been careful to articulate that legislatures have the right to constrict the pool of eligible voters and establish rules which may limit the number of people who can vote. At the same time, these cases illustrate the special characteristics of the right to vote. Not only have courts viewed the right to vote as a bulwark against government infringement (e.g., keeping certain groups from voting), they have also seen the right to vote as imposing a positive obligation on the state to ensure that people can vote (e.g., making special efforts).

    This paper provides a general overview of the international status of the right to vote. Following this summary, three sections survey the guarantees to universal suffrage included in international treaties and democratic constitutions. These sections also examine the language used to express the right to vote. The fourth section details the types of limitations that are commonly included in right to vote provisions.

    Section 1: International Declarations and Covenants

    The affirmative obligation of states to protect their citizens' right to vote is recognized in international treaties and declarations adopted by the United Nations and by regional treaty organizations such as the Council of Europe and the Organization of American States.

    The Universal Declaration of Human Rights

    The Universal Declaration of Human Rights (UDHR) is the preeminent global inspirational document on human rights. The declaration was adopted unanimously by the United Nations General Assembly in 1948 and its Article 21 lays out the right of people to participate in government and enjoy universal suffrage:
    The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

    Because the declaration is non-binding, its provisions are not accepted in toto as international law. Some of the provisions of the UDHR are considered to have the status of binding international law by virtue of their becoming components of international customary law—law which ;refers to the conduct, or the conscious abstention from certain states that becomes in some measure a part of the international legal order.; Article 21, however, has not been accepted as generally enforceable customary international law.

    The International Covenant on Civil and Political Rights

    In contrast to the UDHR, Article 25 of the International Covenant on Civil and Political Rights (ICCPR) takes its binding effect from its ratification by a large number of signatories (150 to date). The Human Rights Committee (HRC), a permanent treaty organ, was created by the ICCPR. The practical role of the HRC is not enforcement, nor deterrence, nor dispute-resolution. Rather it monitors, studies, and reports on measures taken to give effect to the Covenant and interprets and clarifies the meaning of the covenant through consideration of ;communications; from individuals claiming to be victims of violations of the covenant.7

    Article 25 states:

    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.

    The text of this article closely tracks the language of Article 21 of the UDHR. One important distinction, however, bears noting: the covenant specifies that only citizens shall have the right to vote. Though in most cases limiting the electorate to citizens is legitimate, restrictive citizenship rules can be used as a backdoor method of disenfranchising large swaths of adults on the basis of attributes such as ethnicity and first language. In addition, according to the Committee, the covenant not only protects the right of every citizen to vote, but also requires states to take the measures necessary to ensure that citizens have an effective opportunity to enjoy the right—in particular the Committee has emphasized that the right to vote ought to be guaranteed by law.

    Section 2: Regional Conventions

    The European Convention on Human Rights and Fundamental Freedoms

    The European Convention on Human Rights and Fundamental Freedoms—which was established by the members of the Council of Europe in 1950—is distinguished by its active international Court and its effective complaints procedure for the determination of human rights matters. Currently, the Court is the ultimate authority on human rights for the citizens of 41 member states—thus the Court has jurisdiction over 800 million people. Because the Convention has an effective enforcement mechanism, it is the leading human rights—and thus voting rights—statute within the intra-European system.

    In terms of the right to vote, the Court enforces Article 3 of Protocol 1 (P3-1) of the European Convention, which states:
    The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

    It has been claimed that the Article (P3-1) does not give rise to individual rights and freedoms. Through its willingness to accept cases brought by individuals and in its judgments, the Court, however, has underscored that the right to vote is enjoyed by individuals. The Court ruled, in the case of Mathieu-Mohin and Clerfayt v. Belgium, that the particular language of P3-1was not intended to exclude the right of the individual to vote, but to give greater solemnity to the commitment undertaken and in the fact that the primary obligation in the field concerned is not one of abstention or non-interference, as with the majority of the civil and political rights, but one of adoption by the State of positive measures to ;hold; democratic elections.

    In practice, the Court takes relatively few cases regarding this article. Two interrelated factors contribute to the Court's relative inactivity on matters of suffrage: first, the Court insists that domestic remedies be exhausted before it takes up a case and the Court provides states leeway to resolve issues on their own; second, because a ;genuine; democratic system is a prerequisite of membership in the Council, the Court has found comparatively few cases where domestic remedies to suffrage disputes have appeared inadequate. In addition to the Convention, Europe's commitment to the right to vote is affirmed by documents and regulations of the Organization for Security and Cooperation in Europe and the European Union. Not surprisingly, the right to vote and universal suffrage have been also been incorporated into the new draft constitution being negotiated for the European Union.

    Organization of American States

    With the spread of elected civilian governments during the 1980s , the Organization of American States (OAS) has become increasingly active in promoting representative democracy and the right to vote. Members' efforts to strengthen the OAS's mandate in this area culminated in 2001, when the OAS adopted the Inter-American Democratic Charter. This Charter, a political document adopted by the 34 member states, states that the peoples of the Americas have a ;right to democracy; and establishes that a fundamental element of democracy is ;the holding of periodic free and fair elections based on secret balloting and universal suffrage.; More importantly, the Charter creates a mechanism for a collective response to an unconstitutional interruption of the democratic order of a member state.

    The Charter empowers the OAS General Assembly to suspend the membership of the member state in question when there has been an ;unconstitutional alteration; of the democratic legal order. The Charter also includes provisions for the OAS to observe elections in member states.

    In addition to the Charter, OAS member states have created an inter-American human rights system through adoption of the American Convention on Human Rights, which has been ratified by 25 of the 35 members of the OAS.15 The Convention establishes an Inter-American Court on Human Rights, based in Costa Rica, and an Inter-American Commission on Human Rights, based in Washington. In most respects, the voting rights language of the American Convention tracks with the language of the ICCPR. The American Convention, however, delineates broad categories along which a member state may limit the right to vote.

    Article 23 of the Convention states that:

    1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

    2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

    In addition to the Convention, the member states of the OAS have adopted an aspirational document endorsing the right to vote: The American Declaration of the Rights and Duties of Man (1949). The American Declaration establishes the right to vote, and, in contrast to other prominent human rights documents, it also includes a duty to vote in the country in which one is a citizen.

    The lead role in protecting the right to vote in the inter-American system is not played by the Inter-American Human Rights Court—which generally handles cases related to disappearances or murders—but by the Inter-American Commission on Human Rights. This Commission is empowered to accept individual cases and prepare country reports for which it can conduct on-site investigations. In the early 1990's, the Commission authored reports on violations of the right of political participation in Mexican elections and the progress of the Mexican government in addressing these infringements.

    Section 3: The Right to Vote in Democratic Constitutions

    The opportunity for citizens to participate in politics is established by a variety of means. Though over 90% of the world's electoral democracies have included the right to vote in their constitutions, it has been articulated in a number of different ways or not at all. For example, there is no constitutional right to vote in two of the world's oldest democracies, the United Kingdom and the United States of America, nor in the world's most populous democracy, India. Yet, as Bush v. Gore demonstrated, the existence of a constitutional right to vote and the language used to express it can have significant ramifications on the manner in which the state protects and promotes citizens' right to vote.

    Constitutions break into four categories depending on how they treat the right to vote:
    1. Those in which there is no affirmative constitutional right to vote or no legislation with similar weight.
    2. Those that establish universal suffrage for the election of sovereign bodies—such as a parliament.
    3. Those that provide a general and independent right to vote.
    4. Those that not only provide for a right to vote, but also specify government obligations to facilitate citizen participation and/or those that limit the kinds of restrictions the state can place on who is eligible to vote.

    hile this typology is not scientific, the categories are coherent and reflect the ways universal suffrage is constitutionally enshrined. Neither are the categories exclusive—if a country's constitution requires that representatives to parliament should be elected according to universal suffrage, but also provides a general article guaranteeing universal suffrage, then this countries' constitution is placed in group.

    No Right to Vote:

    Eleven democracies have no explicit constitutional right to vote. Until they established their own constitutions, all of these countries but one were ruled by the Parliament of the United Kingdom or were territories of a country that was. The exception is Indonesia. Paradigmatic examples are the United Kingdom where there is no written constitution, and the United States.

    Universal Suffrage for the Election of Sovereign Institutions

    In many constitutions, the right to vote is not expressed as an individual right, but universal suffrage and secret elections are mandated for the fulfillment of positions in sovereign bodies, such as a legislature. The South Korean constitution is representative of these types of constitutions.

    Article 41: The National Assembly is composed of members elected by universal, equal, direct, and secret ballot by the citizens.

    Article 67: The President is elected by universal, equal, direct, and secret ballot by the people.

    For these states, the existence of a right to vote for representatives in institutions other than those specified—for example state or local government—is left to the legal interpretative structure of that country.

    General Right to Vote

    A stand-alone right to vote is the international standard in democratic constitutions. A majority of the world's democratic constitutions have articles or clauses outlining citizens' entitlement to choose their representatives at all levels of government.

    Most of these constitutions have sections similar to Article 49 of the constitution of Portugal, which states:
    All citizens who are over 18 years of age have the right to vote, except for the incapacities laid down in general law. The exercise of the right to vote is personal and constitutes a civic duty.

    Other constitutions within this group specify that the tenets of universal suffrage should be extended to all elected positions. Bulgaria's constitution exemplifies such statutes. Article 10: All elections and national and local referendums shall be held on the basis of universal, equal, and direct suffrage by secret ballot.
    Article 42: Every citizen above the age of 18, with the exception of those placed under judicial interdiction or serving a prison sentence, is free to elect state and local authorities and vote in referendums.

    Robust Right to Vote Provisions

    Some constitutions go beyond asserting a right to vote by explicitly curbing the state's power to limit those who are eligible to vote. An example of this is Article 32 of the Peruvian Constitution. While the Peruvian constitution allows the suspension of the rights of citizenship—and thus the right to vote—it also constructs additional barriers against the winnowing of those eligible to vote.

    Article 32 states that:

    Citizens enjoying their civil capacity have the right to vote. The vote is personal, equal, free, secret and obligatory until one is seventy years old. It is optional after this age. All acts that limit or prohibit citizens from exercising their rights are null and punishable.

    Other constitutions, like that of Suriname, not only attempt to establish tests on the types of restrictions considered constitutional, but also establish the affirmative obligation of the state to promote electoral participation:
    Article 54: The State is obliged to register those with voting rights and to convoke them to participate in the elections. The registration of the voters shall serve no other purpose. Those with a right to vote are obliged to cooperate with the registration of the electorate.

    Constitutions which Incorporate International Human Rights Conventions

    In addition to the type of guarantees just described, a number of Latin American and Eastern European constitutions such as Chile, Ecuador, the Czech Republic and Slovakia, grant ratified international human rights covenants constitutional or greater status in domestic law. As elaborated in the previous sections, the predominant international and regional human rights documents all establish a right to vote. Article 10 of the Czech constitution is indicative of the type of constitutions in which the right to vote is buttressed by a commitment to international norms: Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, shall constitute a part of the legal order; should an international agreement make provision contrary to a law, the international agreement shall be applied.

    This type of constitutional clause, which is becoming more common, demonstrates the trend towards the acceptance of international standards of human rights—and thus the right to vote—as a standard component of domestic law.

    Section 4: Limitations on the Right to Vote

    The right to vote necessarily entails limitations on who can exercise that right. It is not uncommon for the limits to be embedded in the constitutions of electoral democracies. Beyond the paradigmatic examples of citizenship and age limits, constitutions often explicitly withhold the right to participate in elections from those who are deemed mentally incapable and/or from prisoners.

    The types of restrictions governments place on the right to vote fall into three general categories:
    1) Restrictions based on community membership
    - Examples: citizenship, residence, language
    2) Restrictions based on competence or autonomy
    - Examples: age, mental health
    3) Restrictions as a form of punishment
    - Examples: imprisonment, voter fraud, treason

    All three forms are evident in the constitutions of the world's electoral democracies. For example, Section 110 of the Thai constitution states:
    A person under any of the following prohibitions on election-day is disfranchised:
    1) being of unsound mind or of mental infirmity;
    2) being a Buddhist priest, novice, monk or clergy;
    3) being detained by a warrant of the Court;
    4) being disfranchised by a judgment.

    In addition to constitutional restrictions on the right to vote, almost forty percent of the constitutions surveyed allow for restrictions of universal suffrage to be determined through laws approved by the legislature. In general, a restriction established by a legislative act must still meet certain constitutional standards, e.g., be non-discriminatory in intent. Similarly, legislatures working under constitutions that do not explicitly permit them to limit the electorate, generally must follow a common constitutional guideline for regulating the rights established in the constitution. For example, the Canadian Charter of Human Rights and Freedoms stipulates that any of the rights and freedoms it sets out are ;subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.; Thus, the Canadian parliament must meet this standard to restrict suffrage.

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