Standardizing the principles of international election observation.

• Author: Misk, Jonathan

ABSTRACT

On October 27, 2005, thirty-two international nongovernmental organizations (INGOs) and intergovernmental organizations (IGOs) signed the Declaration of Principles for International Election Observation, drafted with the assistance of the United Nations. For nearly four decades before the signing of the Declaration, international election observation rapidly gained acceptance as a legitimate method of guaranteeing free and fair elections and thus promoting lasting democratic institutions. Many INGOs and IGOs conducting observation missions--including the Organization for Security and Cooperation in Europe, the Organization of American States, the South African Development Community, and the Carter Center--independently developed standards for their observers to follow. As international election observation became more prevalent and more organizations entered the fray, however, independent standards contributed to confusion. The Declaration thus sought to standardize election observation principles governing both international observation missions and host nations. Despite this noble goal, the Declaration falls short of providing a truly uniform and specific set of regulations that host nations, INGOs, or IGOs if they so choose--can simply adopt. In seeking to remedy the shortcomings of the Declaration, this Note examines existing international principles and representative national laws and offers, in conclusion, a draft Annex to the Declaration that incorporates the most useful and effective of these provisions.

TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORY AND CONTRIBUTIONS OF INTERNATIONAL ELECTION OBSERVATION III. REGIONAL ELECTION OBSERVATION GUIDELINES AND THE UN DECLARATION OF PRINCIPLES FOR INTERNATIONAL ELECTION OBSERVATION A. Foundational Election Observation Guidelines B. The UN Declaration of Principles for International Election Observation IV. NATIONAL LEGAL PROVISIONS GOVERNING INTERNATIONAL ELECTION OBSERVATION A. Russia 1. Sources of Law on the Participation of International Election Observers 2. Invitation, Recognition, and Accreditation of International Election Observers 3. Observatory Rights of International Election Observers 4. Limitations Placed on the Work of International Election Observers 5. Reporting Standards Expected of International Election Observers 6. Actions Required of Russia with Respect to International Election Observers B. Azerbaijan 1. General Background Principles of Election Observation 2. Invitation, Registration, and Accreditation of International Election Observers 3. Observatory Rights of International Election Observers 4. Limitations Placed on the Work of International Election Observers 5. Reporting Standards Expected of International Election Observers 6. Actions Required of Azerbaijan with Respect to International Election Observers V. PROPOSING AN ANNEX TO THE UN DECLARATION OF PRINCIPLES FOR INTERNATIONAL ELECTION OBSERVATION A. Concerns with the Declaration of Principles for International Election Observation B. A Discussion of the Elements of the Proposed Annex to the Declaration 1. Purposes and Objectives of International Election Observation 2. Respecting National Sovereignty 3. Invitation of International Election Observers 4. Obligations and Duties of Host Nations Requisite to the Acceptance of an Invitation 5. Accreditation of International Election Observers 6. An Observer's Mandate: Rights and Reach of International Election Observers 7. An Observer's Limits: Obligations of and Limits on International Election Observers 8. Reporting Duties of International Election Observers and Observation Missions C. Concluding Remarks on the Proposed Annex VII. CONCLUSION APPENDIX A I. INTRODUCTION

The international community has long considered free and fair elections a necessary element of fully-functioning democracies. (1) The right of citizens to vote in such elections is an internationally recognized basic human right. (2) For a variety of reasons, however, many states have proved incapable of establishing systems that allow free and fair elections to take place. (3) The reasons for these states' inability to construct functional electoral systems range from the existence of authoritarian regimes to the instability of governmental transitions. Rather than identifying and addressing the reasons certain states do not hold regular elections, several governments and organizations have taken on the more useful task of establishing norms and mechanisms designed to protect the integrity of the elections that do take place.

One of these mechanisms is nonpartisan election observation. (4) Since the late 1980s, governments and nongovernmental organizations (NGOs) alike have spearheaded efforts to establish both domestic and international election observation bodies. (5) In this time, over half of the world's elections have been observed by major international organizations. (6) These groups have invested enormous amounts of energy in both observing and reporting on the fairness, accessibility, and overall outcomes of national elections.

Despite the increasing prevalence of election observation organizations, (7) there have been few attempts (8) to articulate formal, widely-accepted international legal principles to govern the various components of election observation. A detailed international statement should address: (1) the determination of how and when international election observers should be deployed; (2) the accreditation of observers; and (3) the observers' rights, duties, and obligations. Several states have determined that election observation would benefit the administration of their elections and have written or amended their electoral laws to include provisions governing international election observers. (9) Globally, however, there has been only one attempt to formulate similar principles. (10) In October 2005, the United Nations helped facilitate over two dozen supranational organizations' joint endorsement of the UN Declaration of Principles for International Election Observation (Declaration). (11) The Declaration defines the general principles that all international election observers should follow, (12) but there remains much room for improvement. Above all, the Declaration lacks detail and offers feeble platitudes, leaving the specifics of international election observation governance up to individual nations, international nongovernmental (INGOs), and intergovernmental organizations (IGOs). (13) For these reasons, an update to the Declaration is now necessary.

This Note examines international election observation principles and national electoral laws. The Note then presents a draft Annex to the Declaration that draws on the most useful and effective aspects of those provisions. Part II of this Note explores the history and contributions of international election observation and the promotion of democracy since the late 1980s. Part III outlines certain principles governing well-known international election observation bodies and reviews the UN Declaration of Principles for International Election Observation. Part IV addresses Russia's and Azerbaijan's electoral law provisions governing international election observation missions. Drawing on these national laws and international principles, Part V discusses the provisions necessary for a proposed Annex to the Declaration that would standardize the practice of international election observation. Finally, Appendix A offers a full draft of the proposed Annex.

2. THE HISTORY AND CONTRIBUTIONS OF INTERNATIONAL ELECTION OBSERVATION

   Since the end of the Cold War, the prevalence of international election observation has increased dramatically. (14) This expansion reached its peak in the late 1980s and early 1990s. (15) Scholars continue to debate why many states have allowed international organizations to observe internal elections, which have long been considered the most important domestic expression of sovereignty. (16) Judith Kelley, a preeminent scholar in the field, proposes that international election observation gained traction as a "mechanical function related to increasing democratic transitions." (17) This argument contends that as more and more states transitioned to democratic forms of government, demand for aid in administering elections increased. (18) This explanation, however, is insufficient on its own. As Kelley observes, transitions to democratic governments were more prevalent in the 1970s and early 1980s than in the late 1980s and 1990s; thus, if transitions drove international election observation, the number of observation missions should have begun to increase in earnest in the late 1970s. (19) But this was not the case. (20)

   Another potential explanation rests on the diffusion model, which holds that election observation gained prevalence in Latin America and then "emanated from there." (21) However, this explanation is also incomplete: INGOs have successfully conducted election observation missions outside of Latin America since as early as 1980--before the majority of the Latin American observation missions occurred. (22)

   Some argue that the "global normative environment about elections and human rights" simply shifted after the Cold War. (23) The director of the Democracy Program at the Carter Center has contended that "the end of the Cold War in the late 1980s triggered a dramatic expansion in the number of election observations missions." (24) One might thus conclude that the Cold War encouraged countries to actually recognize the universal human right to vote that was guaranteed by Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights. (25) While more inclusive than other rationales, this explanation also has its shortcomings. As Kelley explains, "[t]he end of the Cold War alone ... cannot explain the attention to elections, the framing of election monitoring as a...