Elections, democracy, the rule of law and international law: address to the International Law Association (Australian Branch), Annual General Meeting, Sydney, 28 November 2006.

• Author: Goodwin-Gill, Guy

Twelve years ago I undertook a study for the Inter-Parliamentary Union ('IPU') which led to the adoption by the Inter-Parliamentary Council of a Declaration on the Criteria for Free and Fair Elections. At that time, the early 1990s, the talk was all about transition--transition from single party to multi-party States; transition from authoritarianism to democracy; and transition from conflict to political settlement.

In all of this, free and fair elections were seen to play a major role and were regularly endorsed by the United Nations ('UN') (which set up an Electoral Assistance Unit in 1992), the General Assembly, and regional organisations, such as the Organisation for Security and Cooperation in Europe ('OSCE'), the Council of Europe, the Organisation of American States ('OAS'), and the Commonwealth.

In contrast with 'democracy', which is not mentioned in the UN Charter or any of the early human rights instruments, the principle of free and fair elections, in purely formal terms, seemed to have a reasonably good international law provenance.

Article 21 of the 1948 Universal Declaration of Human Rights clearly sets out the right of everyone to participate in the government of his or her country, and prescribes that 'the will of the people shall be the basis of the authority of government'. These 'election rights' were later developed as formal obligations in article 25 of the 1966 International Covenant on Civil and Political Rights.

Every citizen shall have the right and the opportunity ... to take part in the conduct of public affairs, directly or through freely chosen representatives ... 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 ... [and] ... to have access, on general terms of equality, to public service in his country. Just as importantly, they were backed up with recognition of what can be termed the 'political and campaign rights', that is, the rights to freedom of expression, peaceful assembly and association, which are critical to a meaningful election process: articles 19, 21 and 22.

Nevertheless, to my mind there is no doubt that now the 'quality of democracy' is very much on the international agenda, if not to everyone's pleasure, and what is interesting is the way in which the debate has moved on since 1994.

What was important then, and what was confirmed in the practice of States, the UN and a variety of regional and other organisations engaged in election observation and election monitoring, were essentially the following formal elements:

* the need for an electoral system laid down by law;

* provisions for constituency delimitation;

* an election management organisation;

* recognition of the right to vote;

* registration of voters;

* civic and voter information and education;

* implementation of political participation rights for candidates and political parties;

* regulation of electoral campaigns, particularly through the use of agreed codes of conduct and guarantees in key areas, such as media and publicity;

* transparent procedures for balloting and monitoring; and

* a prompt and effective complaints and dispute resolution process.

The IPU's Declaration on Criteria was based on existing universal and regional instruments, the practice of States, and the experience of regional and other organisations engaged in electoral monitoring and electoral observation--the UN, the OAS, the OSCE, the Organisation of African Unity, the Commonwealth and the Council of Europe.

While the Declaration supported measures in each of these areas, it did not purport to legislate anything--after all, the IPU itself is rather a unique organisation, being a union of national parliaments, not of States or governments, and having no power to bind. But one of the purposes of the Declaration was to disseminate international standards in an increasingly active and open electoral field. The authority of the Declaration was helped when it was acknowledged by the UN General Assembly, incorporated into the practice of international and regional organisations, and translated into a dozen or more languages, often by non-government organisations engaged in voter education and electoral observation.

Since then, much experience has been gained, first, in giving content to words which, like 'periodic', 'free', 'fair' and 'genuine', do not possess immediately obvious and applicable meaning. The basic requirements are now largely beyond question, and international standards are evolving more in the direction of strengthening popular participation and promoting accountability. But above all, there is a new focus on the 'democratic structure', as the framework for a society in which human rights can be fully realised.

Perhaps not surprisingly, democracy itself was a rather long time coming and was duly hedged about with qualifications respectful of sovereignty and choice. Typical of statements at the time was the 1993 Vienna Declaration on...