Right to a true democratic voice.
The people in control.
Student: Jeroen Bijvoet
Student number: 10178899
Supervisor:
Dhr. Mr. Dr. M. Den Heijer Professor of international law Amsterdam Centre for International Law
2 Table of Contents
Chapter 1: Introduction. ... 3
Research set-up. ... 4
Chapter 2: Human Rights. ... 5
1. Discussion surrounding human rights. ... 5
2. What are human rights? ... 8
Chapter 3: The Social Contract. ... 9
1. Why Rousseau? ... 9
2. Rousseau´s social contract. ... 10
3. The establishment of governments. ... 14
I. Government. ...14
II. Democracy as governmental system. ...16
III. Representation. ...17
4. Right to Vote. ... 19
1. Article 25 of the International Covenant on Civil and Political Rights... 19
2. Article 3 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ... 21
3. Difference in interpretation. ... 23
Chapter 5: Conclusion. ... 27
Rousseau’s right to vote. ... 27
Examining the rights... 29
Appendix: Towards Rousseau. ... 33
Bibliography: ... 36
Treaties: ... 36
Case law: ... 36
European Court on Human Rights; ...36
Literature: ... 36
UN literature: ...36
General literature: ...36
3
Chapter 1: Introduction.
The system of international law is primarily governed by international agreements, which create rules that are binding upon the consenting States, and customary rules, which are State practices which have been recognised by the international
community of States as formulating proper conduct that States need to comply with.1 Although it is a fact that international agreements are very important within
international law, there have been a lot of theories throughout history that state that any system of law is primarily governed by more fundamental rules which are revealed to us by God, nature and/or reason.
States have made efforts to adopt these fundamental rules into the system of
international law by codifying them into several treaties, but these treaties are all the result of a political agreement between States and therefore their content is open for discussion. Just accepting the result of the political process as fundamental human rights could lead us to a too narrow conception of human rights. This narrow
conception would result in the exclusion, or at least diminishment, of the possible emancipatory potential of the natural human rights from our conscious.2 We could be limiting ourselves when only considering the codified rights to be human rights and therefore we need to question each and every one of them. The question is whether the States codified all the fundamental human rights or not and whether they adopted rights which should not be considered human rights?
In this paper I will venture into the world of human rights and the world of one human right in particular, namely the right to vote and/or to be elected.3 This right is codified in the UN International Covenant on Civil and Political Rights4 and in the European Convention for the Protection of Human Rights and Fundamental Freedoms Protocol 1.5 I started to wonder about the right to vote after I read the book titled ‘Tegen Verkiezingen’ from the Flemish cultural historian David van Reybrouck.6
In his book Van Reybrouck tries to find a solution to one of the most fundamental problems of the democracies in the Western world, namely that which he calls ‘the Democratic weariness syndrome.’7 He uses this term to identify a crisis in the legitimacy and efficiency of the democratic model that is dominant in the Western world, the model of the electoral representative democracy. This model of
democracy, where citizens can vote for a representative in parliament within a
1
Malcolm Shaw, “International law” (7th edition), Cambridge University Press, 2014 p. 4 and 5
2
Richard Thompson Ford, “Universal Right; Down to Earth,” New York and London, W. W. Norton & Company 2012, p. 14-15
3
Hereafter called ‘right to vote’
4
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (hereafter called ‘ICCPR’)
5
European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11, Nov. 4, 1950, 213 U.N.T.S. 221 (hereafter called ‘ECHR’)
6
David Van Reybrouck, “Tegen Verkiezingen,” Amsterdam, De Bezige Bij 2013
7
My own translation of the Dutch term ‘Democratisch vermoeidheidssyndroom,’ David van Reybrouck, “Tegen Verkiezingen,” 2013 p. 22
4 reasonable interval, has lost its usefulness according to Van Reybrouck, which is explained on the basis of its historical origin in the 18th century.8 To put it differently, Van Reybrouck questions in his book whether the fact that we have fused the
founding principle of democracy, which is that the people rule, with the system of elections to vote for representatives, can be upheld in the 21st century and what is needed for the democracy to remain on top.
Van Reybrouck is not a legal scholar, but his work did make me wonder about the legal status of the right to vote. Considering how international treaties come into being as a result of a long and highly political process in which States add, discuss and remove articles from the concept agreement,9 one has to look critically to the rights that are in the final version of the treaty and examine whether the States did include all the rights that should be in it or left/added some rights for their own
convenience. Van Reybrouck´s statement about the wrongfulness of our fixation on a system of elections to form a democratic society and the political process that is the necessary steppingstone for any treaty to come into force have made me decide to research in this paper whether or not the right to vote, as codified in the ICCPR and the first Protocol European Convention should be considered a human right or not. Research set-up.
I will start this journey into the human rights system by touching upon the general discussion surrounding the origin and legal foundation of human rights and explain which point of view will be adopted for writing this paper. It is necessary to first
explain the general discussion surrounding human rights. In the second chapter I will therefore give an overview of the different points of view in the discussion and clarify from which point of view I will look at the right to vote.
In the third chapter I will explain why I will look at the social contract theory of
Rousseau and give a summary of Rousseau´s theory. This summary will be divided in two parts, based on the questions Rousseau wants to answer in his book. The first part will look at the establishment of the social contract and the effects it has on humans and the second part will look at the establishment of a government. This summary will show that Rousseau places the citizens of the State on the sovereign seat of power within the State. The people take a active role in the creation of law and the establishment of other governmental agencies.
8
Ibid, p. 43-59
9
5 After looking at Rousseau I will look in the fourth chapter at the literature and
jurisprudence surrounding the right to vote within each of the international
organisations their systems. First I will discuss the right as established by the UN system, here I will look at general comment number 25 of the UN Human Rights Committee that provides information about article 25 of the ICCPR.10 After that the right to vote as established in the Council of Europe system will be reviewed based on jurisprudence of the European Court of Human Rights.11 When looking at the two human rights systems you will find some differences. After looking at the rights separately I will briefly look at the differences and discuss a possible reason for the differences.
By looking at the right to vote that can be found within the theory of Jean-Jacques Rousseau, that is to say, that the people hold the authority to make law within the State, we can conclude whether or not the right to vote, as codified in the
international treaties, is a human right. With the precise wording of the articles for the international human rights treaties and the particular context in which they should be read in hand, I will come to the conclusion that neither one of the articles is ideal from the point of view of Rousseau. Within my conclusion I will spent time discussing which article, although not Rousseau´s ideal, comes closer to the right to vote of Jean-Jacques Rousseau.
Chapter 2: Human Rights.
1. Discussion surrounding human rights.The first thing that should be pointed out when writing about human rights in general is that there is not merely one concept of human rights. Different people hold different concepts of human rights. Although there is a popular used assumption that human rights are universal, which suggests that they are uncontroversial, the fact of the matter is that there is no agreement in practice about what human rights really are.12 In literature several ideal-types have been identified in order to describe the differing views on human rights. In this contribution four schools of thought on human rights will be discussed. The natural law school of thought will be discussed first, after that the deliberative/positivist school of thought, third the protest school of thought and finally the discourse school of thought.13
10
UN Human Rights Committee (HRC), CCPR General Comment No. 25: Article 25 (Participation in
Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7
11
Hereafter called ‘the European Court.´
12
Edith Brugmans, “Filosofie van de Mensenrechten,” Nijmegen, Wolf Legal Publishers 2010 p. 123
13
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 2
6 The first of the schools of thought, the natural law school of thought, is one of the earliest iterations of the idea of human rights. Followers of this school of thought consider that some legal rules and relations either are ordained by God or inherent to human nature.14 Many scholars following this school of thought consider human rights to be entitlements, which are in nature negative and absolute.15 Human rights are considered to be equal rights, for if you are human, you have them, and
inalienable rights, because nobody can take away the fact that you are human.
Human rights are therefore also universal, because we consider every member of the human race to be a “human being,” no matter how badly one behaves.16 Within this school of thought there is a great support for the development of human rights law as a continuation of the naturally existing human rights. There is a discussion however within the school, whether the current human rights law corresponds correctly with the natural existing inherent human rights.17
The deliberative school of thought, which is also called the positivist school of thought, considers human rights to be important principles that the international community has agreed upon.18 This school of thought emphasises on the authority of the State and leaves little to no place for rights in the legal system other than specific rights emanating from the traditional structure of that system.19 It follows from this that the universality of human rights is not a given according to this school of thought. It is merely considered to be a project, which means that human rights become
universal through the global adoption of them.20
The positivist school of thought is the thought school of traditional legal scholars, in which international law is dominated and determined by the sovereign States, which in most cases can only be bound to international rules by consenting to them. Only in certain circumstances there can be law without giving a clear consent to be bound and that is when there is a long standing custom, which has become part of
customary international law.21 For this school of thought the system of international law is not primarily governed by international treaties and customary rules, but only governed by treaties and customary rules.
14
Richard Thompson Ford, “Universal Right; Down to Earth,” New York and London, W. W. Norton & Company 2012 p. 25
15
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 2-3
16
Jack Donnelly, “Universal Human Rights in theory and practice,” Ithaca and London, Cornell University Press 2013 p. 10-11
17
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 3
18
Ibid, p. 8-9
19
Malcolm Shaw, “International law” (7th edition), Cambridge University Press, 2014 p. 195
20
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 10
21
7 The third of the thought schools, the protest school, is closely related with the natural law school, but is first and foremost concerned with redressing injustice. For this school, human rights are the manifestation of the rightful claim made by or on behalf of the poor, the unprivileged and the oppressed.22 Scholars of the protest school of thought see human rights as a way to protest against the status quo, as a claim against injustice, as the following quote illustrates:
“For the hundreds of millions of the ‘wretched of the earth’, human rights enunciations matter, if at all, as and when they provide, even if contingently, shields against torture and tyranny, deprivation and destitution, pauperization and powerlessness, desexualisation and degradation.”23
The protest school of thought is therefore not agreeing with the nature law school in its beliefs of human rights as universal entitlements, because if those entitlements cannot be used to question the status quo, the protest school has no use for them.24 The protest school of thought is related with the natural law school in the fact that it does not merely look at human rights law for human rights, but considers them to be more than that.25 Protest scholars look for human rights in the tradition of social struggles in society and therefore consider that the history of peoples resistance and struggle result in human rights.26
The discourse school of thought is the school that is the least interested in human rights. For them human rights are not based on natural values, legal norms or the tradition of social struggle, but only exist because we talk about them. They regard any discussion on the subject of human rights meaningless, because they do not believe in human rights to begin with. Discourse scholars point to the many promises that human rights cannot deliver, such as the equality of all humans.27 The system of human rights has failed from their point of view and they consider it necessary to search for an alternate system to protect fundamental moral principles.
22
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 3
23
Upendra Baxi,”The Future of Human Rights” Oxford Scholarship Online, published online October 2012, DOI:10.1093/acprof:oso/9780195690439.003.0001, p. 6
24
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 3
25
Ibid, p. 6
26
Upendra Baxi,”The Future of Human Rights” Oxford Scholarship Online, published online October 2012, DOI:10.1093/acprof:oso/9780195690439.003.0001, p. 94
27
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 4+9
8 Although the discourse school of thought considers the human rights project to have failed, they do acknowledge that the language surrounding human rights has become a powerful way to make moral or political claims.28
As mentioned above, these four school of thought are merely ideal-types and are therefore just a system to create some order in the chaos of the numerous views on human rights. This labelling is useful for separating the parties to the discussion, but does not solve the opposing opinions on the questions surrounding human rights.29
2. What are human rights?
For the purpose of this paper, that is to investigate whether or not the right to vote should stand on the same pedestal as all the other human rights, it is obvious that this paper is not written from the perspective of the deliberative school of thought. The deliberative or positivist school of thought considers the consent given by States very important after all.30 The fact that the right to vote is codified in two important international human rights treaties, namely the UN Covenant on Civil and Political Rights and the first Protocol of the European Convention, would conclude a research for the deliberative school of thought. The right to vote is codified in a treaty and by doing so States have recognised the right as a human right and therefore there is no need for a research about the standing of the right to vote.
For this research I will have to look at and perhaps criticise international human rights law as it is, while looking outside of positive international human rights law and
venture into the area covered by the natural law school and the protest school of thought. The fact that this article could result in the need to rectify a flaw in international human rights law, that is when it is established that the right to vote should not be considered a human right, results in this article being partially within the area of the protest school of thought. For when it is established that the right to vote as codified in the international human rights treaties should not be considered in line with the real human rights, this would result in a claim/aspiration to the real human right, whatever that is.31 It will present us with a rightful protest against the status quo, which is in line with the function of human rights according to the protest school of thought.
As mentioned earlier the codification of the right to vote will be tested by looking at the social contract theory of Rousseau. Rousseau’s social contract theory is
considered to be part of the natural law school of thought. Every social contract theory in existence aims to justify the creation of a State from a natural plane of existence. They all deal in their own way with the transformation of natural rights of 28 Ibid, p. 10 29 Ibid, p. 20 30
Malcolm Shaw, “International law” (7th edition), Cambridge University Press, 2014 p. 195
31
Marie-Bénedicte Dembour,”What are Human Rights?; Four Schools of Thought,” The Johns Hopkins University Press, 31 Hum. Rts. Q. 1 2010 p. 3
9 humans to a system of law within the society of a State.32 The fact that the possible criticism to the articles within international human rights law will be based on the theory of Rousseau makes it appropriate to state that this article will be more towards the natural law school of thought than towards the protest school of thought.
For the purpose of classifying this paper within the ideal-types frame introduced before, it would be correct to say that this paper is above all else written from the natural law school perspective with a possible conclusion with ‘protest school’ elements.
Chapter 3: The Social Contract.
1. Why Rousseau?This thesis is written from the perspective of the natural law school of thought, because I use the social contract theory of Rousseau to find an answer to the question whether or not the codified articles on the right to vote can truly be
considered to be human rights. The only question that remains is ´why Rousseau´s theory and not one of the many other political theories that have been presented to us throughout the centuries?’ Before I start summarizing the theory of Rousseau, I will explain why I considered the social contract theory of Rousseau the most suited to use for this research.
The social contract theory of Jean-Jacques Rousseau is better suited to do this research with, because Rousseau, unlike Machiavelli, Hobbes and Locke, leaves the sovereign authority of the State with the people.33 Where the other three writers place the sovereign authority eventually with another entity, Rousseau leaves it with those who signed the social contract, the people. Every individual, whom is a citizen of the State, is and remains to be his own master after signing the social contract.34 According to Rousseau the people have an active role in the governing of their own State and this role is the reason why Rousseau is better suited to be used than other authors. The right to vote is after all a form of political participation in which the people contribute their visions on how the state should be governed.
Rousseau is also better suited for this research than his fellow social contract theorists Hobbes and Locke, because of his republican view on the social contract. Hobbes and Locke consider that the social contract takes away freedom of the people in order to govern them, which is best illustrated in Hobbes’s ‘Leviathan,’
32
Edith Brugmans, “Filosofie van de Mensenrechten,” Nijmegen, Wolf Legal Publishers 2010 p. 17
33
J.S. McClelland, “A History of Western Political Thought,” London and New York, Routlegde; Taylor & Francis group March 1998, p. 275-285
34
Jean-Jacques Rousseau(edited by G.D.H. Cole), “The Social Contract and The Discourses,” New York, London and Toronto, Everyman’s Library 1995 p. 191
10 which states that the people are free where the law remains silent.35 This liberal view on the social contract is unsuited for this research from my point of view, for the right to vote is a right obtained by being a member of a political society. I got the freedom to voice my opinion on how the state needs to be governed, because I entered into the social contract, for it is not a right in the state of nature to have a say in the way that other people should behave.
Rousseau’s theory provides us with an active role for the citizens in the governing of the state and considers the social contract to increase the freedom of the citizens. These two elements can be connected to the right to vote and that makes the social contract theory of Rousseau best suited to use for this research.
2. Rousseau´s social contract.
In his theory, Rousseau explains how every person in the state of nature is equally independent and that the first law in the state of nature therefore is the right to self-preservation. Each person that is able of discretion, in other words able to judge his own actions, is the only judge able to judge what is necessary for his own
preservation. It follows from this that every person in the state of nature is his own master and that this cannot be taken away.36 In chapter 3 and 4 of the first book of ‘The Social Contract’ Rousseau explains that there is not a right of the strongest or a right to enslave others, for although one can effectively enslave another by force, this power does not create a right, and therefore does not change your status of being your own master.37
Being independent from others can have its disadvantages, for there can be obstacles and/or dangers that you cannot overcome by yourself. You cannot
overcome it and are therefore threatened in your very survival. This threat can only be overcome when multiple individuals unite their forces together and form a formation of power, but this creates a problem as Rousseau explains;38
“The problem is to find a form of association that will bring the whole common force to bear on defending and protecting each associate’s person and goods, doing this in such a way that each of them, while uniting himself with all, still obeys only himself and remains as free as before.”39
35
Steven B. Smith, `Introduction to Political Philosophy; Lecture 20: Democracy and Participation,
Rousseau, Social Contract I-II” Open Yale Courses, Yale University, retrieved from internet on
20-04-2015
36
Jean-Jacques Rousseau(edited by G.D.H. Cole), “The Social Contract and The Discourses,” New York, London and Toronto, Everyman’s Library 1995 p. 182
37 Ibid, p. 184-188 38 Ibid, p. 190-191 39 Ibid, p. 191
11 One can find two goals in this quote from ´The Social Contract.´ First we have the goal of creating an association which force is enough to defend and protect each person and good that is part of the association. We find this element in every social contract theory, for each theory advocates the social contract over the natural state by pointing to danger or chaos in the natural state that threatens people enough to seek the protection within the collective established by the social contract. Secondly we find the goal that, although the individual joins the association, the individual remains as free as before. This goal is unique for the social contract theory of Rousseau.
The social contract offers a solution for this problem. The clauses of the social
contract must be formulated in a way that the slightest modification would make them ineffective, so that, when the contract is violated, each individual regains his natural rights and resumes his natural freedom, while losing the freedom gained through the social contract.40 According to Rousseau it is not necessary to have many articles within the social contract, for just one article would be enough to establish this association. The single clause that is necessary demands;
“the total alienation of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the
conditions are the same for all; and, this being so, no one has any interest in making them burdensome to others.”41
The total alienation brings an union that is as perfect as it can be, because nobody can make a reserve on this clause. Each individual needs to give himself absolutely to the collective and thereby committing himself to the general will of the collective and no longer merely on his own self preservation.42
By signing the social contract and the alienation to the whole community that is the result of it, each individual abandons its own will and joins all individuals together as a corporate and collective body, with as many votes as it has members.43 This public person is given life by the contract between its members and Rousseau calls this entity ´republic´ or ‘body politic’. The body politic forms the State in which its members live, the Sovereign when acting in accordance with the general will and Power when compared with other communities like itself.44
Following the creation of the body politic, Rousseau states that the individuals, that are associates within the body politic, will undergo a fundamental transformation. The natural instinct of man is left for a sense of justice and the actions of man are no longer guided by self preservation, but are also guided by moral aspects which were 40 Ibid, p. 191 41 Ibid, p. 191 42 Ibid, p. 191-192 43 Ibid, p. 191-192 44 Ibid, p. 192
12 unknown to humans in the natural state. Rousseau states that by entering into the social contract the individual has lost its natural liberty and right to possession, but has gained civil liberty and the right to property.45
According to Rousseau this must be considered as a positive thing for natural liberty is limited by the power of the individual, but civil liberty is limited only to the power of the general will. The same goes for possession and property, where the first of the two is merely something maintained by force and the second can only be given through a positive title. You have possession until you can no longer keep hold of your possessions, but when you have become owner of property, you own it through a title that cannot be taken away by any individual.46
Having united in the body politic, individuals agree to give themselves to the collective, but this does not mean that individuals lose their own personalities and desires. It follows from this that it is not necessary for all the members of the body politic to agree with proposed law. Rousseau considers it only logical that each individual can have a particular will that is contrary or dissimilar to that of the general will, which he has as a citizen. This is not a problem but each individual has to obey the general will, which is established by the body politic. If an individual will not obey the general will, Rousseau considers it necessary for the body politic to force this particular member to be free.47
´To be forced to be free´ must be looked at as a punishment for not obeying the general will. Some state that this consideration is contradicting the Rousseauist reasoning that each individual remains as free as before entering the social
contract.48 I disagree with this statement for Rousseau clearly states that there is a limit to the freedom of every individual within the civil State, for civil liberty is not absolute, but merely limited by the general will. Judith A. Best justifies this statement of Rousseau by comparing it with a game of soccer. Everybody agrees to play soccer and are therefore forbidden from using their hands, but if someone is going to use his hands, that person is corrected by the group or if that is not possible removed from the field.49 In Rousseau’s theory everybody agrees to give everything to the
community and are therefore obligated to follow and obey the general will. In Rousseau´s theory it is clear that there is no mercy for rebels, which are individuals who disobey the general will. Rousseau allows for the execution or banishment of those who disobey the general will, but only when this is absolutely 45 Ibid, p. 195 46 Ibid, p. 195 47 Ibid, p. 194 48
Steven B. Smith, `Introduction to Political Philosophy; Lecture 20: Democracy and
Participation,Rousseau, Social Contract I-II” Open Yale Courses, Yale University, retrieved from
internet on 20-04-2015
49
Judith A. Best, `The Mainstream of Western Political Thought,´ Lanham, New York and Oxford, University press of America 1997, p. 103-104
13 necessary.50 Rousseau is clear that the body politic, just like any individual in the natural state, does not have a right to kill its associates, but it can be necessary to execute a rebel for the stability and continuation of the State. As Rousseau explains it;
“ There is not a single ill-doer who could not be turned to some good. The
State has no right to put to death, even for the sake of making an example, any one whom it can leave alive without danger.”51
In order to prevent a misunderstanding I must clarify what the general will is, for it should not be misunderstood as being the will of all the members. The general will considers not the cumulative of all the members wills, but only the common interest of the State. So the general will is not the cumulative of all the members, but it cancels all the plusses and minuses against one another. The general will is that what remains as the sum of the differences.52
The body politic, the collective of all the members of the State, is the sole sovereign of the State, which exercises the general will. It can therefore never be alienated of its authority or be represented by anything else except itself, for it is possible to transmit power to other entities, but not the general will itself. The sovereignty is also indivisible, because if you cannot alienate the sovereignty, you are not able to divide it either. Something is a decision of the body politic and therefore an expression of the general will or it is not.53
Rousseau considers it impossible to divide or alienate the general will from the body politic, but that does not mean that the body politic cannot perish. The body politic ceases to exist when there is no longer any group of men that gathers together and considers themselves a single body, that has only one will, which is concerned with the survival and well-being of all its members.54
The people are united in the body politic, which is the sovereign of the State. The sovereign makes the laws of the nation. The people are subject to the law and therefore it is logical that the people are the author of the laws. For it is the people that formed the society through the social contract and thereby should be the sole regulators.55 It is however impossible for the people to accept law that is directed to a particular object, for Rousseau considers merely something law when it has a
50
Jean-Jacques Rousseau(edited by G.D.H. Cole), “The Social Contract and The Discourses,” New York, London and Toronto, Everyman’s Library 1995 p. 208
51 Ibid, p. 208 52 Ibid, p. 202 53 Ibid, p. 199-201 54 Ibid, p. 207 55 Ibid, p. 211
14 general object. He explains what he means by stating that law must always look at subjects as a group and actions in abstract.56
In order for the people to be able to make proper laws, Rousseau seems to enlist a legislator. The position of the legislator is an extraordinary position in the State, but the person covering this position must have a superior intelligence beholding all the passions of men without experiencing any of them.57
These are Rousseau´s considerations on the creation of the State and the
establishment of the body politic as collective association of the people, but this is not the end of Rousseau´s theory. Rousseau´s theory does not end with the
establishment of the body politic as the sovereign of the State, for Rousseau
continues to discuss the formation of the government. According to Rousseau this is the only right way to address the issue of creating a State, because Rousseau considered it necessary to first address the question “what makes a people” before coming to the question “why do we let a king govern.”58
3. The establishment of governments.
Rousseau’s first question has now been answered. By entering into the social contract the individual becomes part of the body politic, which makes a group of individuals ‘a people.’ By signing the social contract individuals agree to become part of the body politic, which is governed by the general will, and thereby accept that their particular wills are merely part of the deliberation within the body politic. In other words the individuals agree to subject themselves to the general will, whatever the general will is.
After addressing this issue Rousseau comes to the second question about why a certain type of government is allowed to govern. I will first address Rousseau´s general remarks about government and continue from there to his deliberation about the system of democracy and his view on the system of representatives based on elections.59
I. Government.
Rousseau starts in book III of ‘The Social Contract’ with justifying a division of power. He states that every entity in this world needs two elements to accomplish its
objectives, namely the will to accomplish it and the power to reach out and grab it. Rousseau states that, as a public entity, the body politic is also comprised of these two elements. For the body politic these elements are the legislative power and the executive power or in other words, the act of law-making and the act of enforcing the law.60 Rousseau continues by repeating that the act of law-making lies with the people and that that authority cannot be taken away from them. Considering this, Rousseau states that it is necessary to take the executive power from the body politic and place it with another agency.61 This agency functions as the intermediate body 56 Ibid, p. 210 57 Ibid, p. 212-213 58 Ibid, p. 190 59
This is covered in Book III of The Social Contract
Jean-Jacques Rousseau(edited by G.D.H. Cole), “The Social Contract and The Discourses,” New York, London and Toronto, Everyman’s Library 1995
60
Ibid, p. 227
61
15 between the subjects and the sovereign, to secure a successful correspondence between them, in charge of executing the laws and the maintenance of liberty. This agent is called ‘government’ and the members of the government are magistrates, kings or governors.62
The government gets its orders from the body politic, that is the laws established by the body politic, and gives the orders to the people. In order for the State to be properly balanced, there must be equality between the executing powers of the government and the power of the citizens, who are on the one hand the sovereign and on the other merely subjects to the authority of the body politic.63 This dual role of the individual is explained by Rousseau with the example of the State with ten thousand citizens. Rousseau explains that each individual is a member of the State and thereby subject, but all those ten thousand together form the sovereign of the State. Therefore the Sovereign its relation to the subject is that of ten thousand individuals to the single individual. Each individual has only a share of a ten-thousandth part of the sovereign authority.64
Like every other entity in existence, the government has the same elements
governing it, a will to accomplish something and the power get it done. Therein lies a threat to the State itself, for being an entity, the government has its own personality like the body politic ,which comes from its members. If the personality of the
government becomes more active than the body politic and bends the public force vested in it to its own particular will, there would be two sovereigns. Rousseau separates these two in the rightful sovereign and the actual sovereign. This act is impossible in the social union and therefore the social contract seizes to exist and the body politic is dissolved.65
Government is an entity in and of itself and thereby desires to preserve its own
existence. This particular existence implies that the government, just like the whole in the body politic, must hold councils, have deliberations and make decisions based on rights and privileges that are exclusive to the government.66 The fact that the
government is an artificial body created by another artificial body, one could say with only a borrowed life, does not mean that the government is unable to act in order to protect its own health and functioning as entity.67
The relation between the government and the magistrates is similar, although not completely the same, as the relation between the people and the body politic. Each magistrate holds as much authority as the government divided by the number of magistrates, just like in the relation of the individual to the body politic. The only difference is that the government delegates governmental power to its members, where the individual gets no power from being part of the sovereign.68
62 Ibid, p. 228 63 Ibid, p. 228-229 64 Ibid, p. 229 65 Ibid, p. 231 66 Ibid, p. 231 67 Ibid, p. 232 68 Ibid, p. 232-233
16 The amount of power that can be delegated to each of the magistrates is
proportioned to the number of magistrates that are united in the government. When delegating power, the government becomes weaker as a whole, for the power given to the magistrate can no longer be used by the government as a whole.69
From this consideration Rousseau continues that this governmental nature could result in several different forms of government. The forms that Rousseau considers are democracy, aristocracy and the monarchy. Considering that this paper focuses on the right to vote and that this right has a longstanding relation with democracy, I will merely look at Rousseau´s considerations surrounding democracy, a system which he describes as;
“..., the Sovereign may commit the charge of the government to the whole
people or to the majority of the people, so that more citizens are magistrates than are mere private individuals.”70
II. Democracy as governmental system.
Rousseau does not consider the governmental system of democracy to be the ideal system of government, because he considers the people not the right entities to become magistrates. It is, according Rousseau, against the natural order to let the many govern over the few.71 Although he considers it only logical to think that those who make the law, know the law best and are therefore best suited to execute the law, Rousseau does not consider this wise, because of his firm believe in the separation of power.
As mentioned before, the reason why we need a government at all is because we should separate the legislative power, which cannot be taken from the body politic, from the executive power. Rousseau places the executive power with the agency of the government. If you would chose a democracy as governmental system, this would mean that the individual is part of the legislative power and executive power, next to being the subject to the law. According to Rousseau this create ‘no more than a government without government,’ because the government and the body politic would be one and the same, namely the people.72
This combination of the sovereign with the government will lead to problems in the execution of both entities their tasks. Rousseau thinks that the focus of the people should be on the general standpoint, which gives birth to the law, and not devote itself to the particular issues surrounding the work of the government.
This major institutional issue aside, Rousseau considers it also really difficult to create a government that is rightfully called a democracy. Such a government could only be created in a very small State, in which people can easily come together to discuss the issues at hand. Secondly there cannot be very complicated issues, for 69 Ibid, p. 234 70 Ibid, p. 235 71 Ibid, p. 236-237 72 Ibid, p. 236
17 this would lead to problems, considering that every individual would have a different solution to the problem, which would cripple the government as entity. The third element necessary for a democratic government would be a large measure of equality in wealth and status and there should be only little or no luxury at all, for luxury would corrupt the rich and poor of society.73
Democracy is the least stable government, because there is always a threat of civil war and internal conflict. The reasons for this is that a democratic government will always have a tendency to change to another form of government, monarchy or aristocracy, and it requires more vigilance and courage for it to be maintained. Under a democratic government civilians should arm themselves with strength and
devotion, and live every day with the thought `I prefer dangerous liberty over peaceful slavery.´74
Considering all this Rousseau ends his contemplations on the governmental system of the democracy with the words;
“Were there a people of gods, their government would be democratic. So perfect a government is not for men.”75
Rousseau continues to state that there is no such thing as a single government for all situations, for it could be necessary to have a popular government with a monarch as head or a aristocratic system of government. When a government is more closely related to the sovereign than the people to the government, the division of executive power from the government can help to compensate for the functioning of the
government till that point in time.76 In such a mixed government it is possible to have democratic elements under the surveillance of a monarch, which makes it possible to have a functional democratic system within a State.
After clarifying all the possible systems, Rousseau reconfirms that the governmental systems are subject to choice. There is not one system that is favoured above the others for all of them can succeed as long as the right conditions are met.77
III. Representation.
Within the theory of Rousseau there is only limited room for representation, because of Rousseau´s clear separation of powers. He separates the legislative and the executive branch of power. One of which, the legislative power, belongs to the
people and which cannot be taken away from the people. This makes it clear that the
73
Ibid, p. 237
74
Translation of a quote from Count Palatine ´Malo periculosam libertatum quam quietem servitium´ Jean-Jacques Rousseau(edited by G.D.H. Cole), “The Social Contract and The Discourses,” New York, London and Toronto, Everyman’s Library 1995 p. 238
75 Ibid, p. 238 76 Ibid, p. 246-247 77 Ibid, p. 247-248
18 idea of representation in the function of the legislative power should be impossible according to Rousseau.78
Rousseau clearly states that when the people cease to see the public service as their main business, the State is not far from its fall. According to Rousseau it would not serve the State, when citizens would merely serve the public service with their money instead of their own persons, because this would make the citizens slaves to their self-interests. For when the public service is no longer the main concern of the people, they will be focussed on the commerce and the arts in order to satisfy their greedy self-interest of profit. They need the profit in order to pay those they enslaved themselves to, the representatives.79
Sovereignty lies essentially in the general will and the general will is not served by the act of representation, the decisions made by such an organ or agency are either the general will by chance or they are not and there is not any alternative possibility. Any decision of such an organ or agency, even if it is given the title law, is null and void, for any decision that is not ratified by the people themselves is not law.80 Rousseau gives the example of the people of England. The English people consider themselves free, but they are not, because they are merely involved with the public service once every four years during the election of parliament. Rousseau considers that as soon as the election is over the freedom of the English people turns into the slavery under parliament.81
The concept of representation is relatively new according to Rousseau. The idea is based on the feudal system of government, which Rousseau considers to be an absurd system which is inhuman and dishonours the name of man. In Antiquity there were no representation of the people. In the Roman Republic there were tribunes, but these would never consider themselves the usurpers of the people.82
The only way in which the people can be represented by deputies is when the deputies are nothing more than stewards of the people. They are merely the eyes and ears of the people and cannot carry out any definitive acts. In other words the act of selecting someone to represent a group cannot give that person the sovereign power of the people that he/she represents.83
Where the legislative power should not be represented by any other than all the citizens, it is possible for the executive power to be represented by others than the
78 Ibid, p. 262 79 Ibid, p. 262 80 Ibid, p. 263 81 Ibid, p. 263 82 Ibid, p. 263 83 Ibid, p. 263
19 people. Rousseau does consider it wise for the executive power to be a
representation of the people, but this is not strictly necessary.84
With these considerations we will leave Rousseau´s legacy of the social contract for now and look at the right to vote as codified in the international human rights treaties.
4. Right to Vote.
As mentioned in the introduction I will start with examining the right to vote within the system of the United Nations and after that the system of the Council of Europe. The interpretation of the right to vote differs within the two international organisations and this will have an impact on the final conclusion of this master thesis. I will try to explain what the reason is for this difference in interpretation before I continue to the conclusion of my research.
1. Article 25 of the International Covenant on Civil and Political Rights. The UN International Covenant on Civil and Political Rights was adopted in 1966 together with the UN International Covenant on Economic, Social and Cultural Rights, which together formed the first two international human rights treaties within the UN system. The ICCPR contains so-called first generation human rights. These are the ‘classical freedom’ rights, which serve to protect the citizens against excesses of the state. The first generation of human rights is clearly intended as State
obligations, which have direct effect.85 They include rights as the right to
self-determination, right to life, right to due process, freedom of thought, conscience and religion and the right to participation in public affairs and the right to vote.86
The Human Rights Committee is charged with supervising the implementation by the member states of the human rights contained in the Covenant.87 The Human Rights Committee receives reports from states and third parties with which the Human Rights Committee can get an appropriate image of the human rights situation in the state in question. The Committee has adopted a variety of General Comments, which are reports about the interpretation of the Human Rights Committee of a certain article in the ICCPR.88
84 Ibid, p. 264 85 Ibid, p. 200-201 86
Article 1, 6, 14, 18 and 25 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
& Malcolm Shaw, “International law” (7th edition), Cambridge University Press 2014 p. 226-227
87
The Human Rights Committee is established in Part IV of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
88
20 The Human Rights Committee has explained its interpretation of Article 25 of the ICCPR in its General Comment number 25.89 In its view article 25 is different from other human rights, because it gives ‘every citizen’ the right to participation in public affairs and the right to vote and not a right to every individual in the jurisdiction of state. The rights protected in article 25 are related to the right to self-determination, which is expressed in article 1 of the ICCPR. Where article 1 allows for peoples to freely determine their own political system and constitution, article 25 deals with the right to participate in those processes. States may only suspend or exclude the exercise of these rights for particular citizens, when that suspension or exclusion is established by law and is objective and reasonable.90
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;...”91
The right to vote is codified in sub (b) of article 25 ICCPR. The Human Rights Committee considers the right to vote in light of article 25 (a), which grants the right to take part in the conduct of public affairs. Article 25 (a) gives a choice in the way that this right is given to the citizens, either directly through a referendum or through freely chosen representatives through elections.92
Article 25 (b) gives a clear set of conditions on how to get those chosen
representatives into office. Next to the written conditions by which elections are held, the Human Rights Committee holds that the chosen representatives must exercise some form of governmental power and that they are accountable through the electoral process for their exercise of that power.93
The Human Rights Committee does not only consider the right to vote at genuine periodic elections to be enough to satisfy the requirements of the ICCPR.. The Committee considers that a State must have a well established freedom of expression, right of assembly and association in order for it to fulfil the conditions under article 25 (b). It follows from this that the right to vote goes beyond the act of
89
UN Human Rights Committee (HRC), CCPR General Comment No. 25: Article 25, The Right to
Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July
1996, CCPR/C/21/Rev.1/Add.7 (hereafter shorted to HRC, CCPR GC No. 25, 1996, CCPR/C/21/Rev.1/Add.7)
90
HRC, CCPR GC No. 25, 1996, CCPR/C/21/Rev.1/Add.7, p. 1-2
91
Article 25 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
92
HRC, CCPR GC No. 25, 1996, CCPR/C/21/Rev.1/Add.7, p. 2
93
21 voting, but that it also includes the right to form and express your political opinion in your everyday life. As citizen you must be able to criticize the actions of your own parliament through writing and assembling in defiance.94 Voters should be able to form their political opinions and vote independently, as to make sure that the elections show the will of the electors.
This point of view was reaffirmed in 2015, when the Human Rights Committee considered that Belarus had violated the rights of one of its subjects, L. Sudalenko, when it had made it impossible for Sudalenko to hold an assembly to get in contact with potential voters. The Human Rights Committee held that, although Sudalenko was not held from attempting to be elected into public office, it was made impossible for him to actively campaign in order to get people to vote for him. This was
considered to be a violation of the rights granted under Article 25 of the ICCPR.95 To summarize it must be concluded that the right to vote, as established in the
ICCPR, must be considered in light of the broader context of article 25 ICCPR and in line with and complementing the other articles of the International Covenant on Civil and Political Rights, such as the right to freedom of expression and the right of assembly and association.
2. Article 3 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Council of Europe is a regional international organisation with 47 States member to it. Most of the member States of the Council of Europe are European States, but the Council of Europe has also members outside of Europe, such as Russia, Turkey, Iceland and Ukraine. The international organisation was founded in 1949 for
encouraging and developing intergovernmental and interparliamentary co-operation.96
Under the banner of the Council of Europe a large number of treaties has been signed between the member States, but the European Convention for the Protection of Human Rights and Fundamental Freedoms is the crown jewel of them all. This European Convention was signed in 1950 and entered into force in 1953. This European Convention contains, just like the UN its ICCPR, first generation human rights or in other words the civil and political rights.97 Unlike the UN system, the interpretation of the ECHR is left to a judicial organ, namely the European Court of Human Rights.
94
HRC, CCPR GC No. 25, 1996, CCPR/C/21/Rev.1/Add.7, p. 3
95
Leonid Sudalenko v. Belarus, Communication no. 1992/2010, UN Doc. CCPR/C/113/D1992/2010, (27 March 2015)(UN. Human Rights Committee).
96
Malcolm Shaw, “International law” (7th edition), Cambridge University Press 2014 p. 248-249
97
22 The European Convention has been reinforced by several extra Protocols, which contain additional rights or measures of procedural reform.98 The right to vote is codified in the third article of the first Protocol, which states that;
“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.”99
When reading this article, one would not consider this article to grant the right to vote to the citizens of a State, and that is correct for the article actually merely gives the right to free elections. Moreover the right is not directed to the individuals, like all the other human rights, but is directed to the member States. The right to vote was never codified in the Council of Europe system as such, but the European Court has said something about the right to vote in relation to the right to free elections. In the case of Mathieu-Mohin and Clerfayt v. Belgium100 the European Court of Human Rights explained the evolution that the right to free elections has went through since the right was established, it held;
“As to the nature of the rights thus enshrined in Article 3 (P1-3), the view taken by the Commission has evolved. From the idea of an "institutional" right to the holding of free elections (decision of 18 September 1961 on the admissibility of application no. 1028/61, X v. Belgium, Yearbook of the Convention, vol. 4, p. 338) the Commission has moved to the concept of "universal suffrage" (see particularly the decision of 6 October 1967 on the admissibility of application no. 2728/66, X v. the Federal Republic of Germany, op. cit., vol. 10, p. 338) and then, as a consequence, to the concept of subjective rights of participation - the "right to vote" and the "right to stand for election to the legislature" (see in particular the decision of 30 May 1975 on the admissibility of applications nos. 6745-6746/76, W, X, Y and Z v. Belgium, op. cit., vol. 18, p. 244). The Court approves this latter concept.”101
The right to vote is not absolute though. The member States have a wide margin of appreciation in organizing the political system of the State.102 The article merely demands that the system will ‘ensure the free expression of the opinion of the people in the choice of the legislature.’103 In interpreting ‘legislature’ the court looks primarily to the national government, but the European court did not exclude other levels of
98
Ibid, p. 250
99
Article 3 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11, Nov. 4, 1950, 213 U.N.T.S. 221.
100
ECtHR, 02/03/1987, App. 9267/81, (Mathieu-Mohin and Clerfayt v. Belgium)
101
ECtHR, 02/03/1987, App. 9267/81, (Mathieu-Mohin and Clerfayt v. Belgium) para. 51
102
Jacobs, White & Ovey, ”The European Convention on Human Rights”, Oxford University Press, 6th edn. 2014 p. 541- 542
103
Article 3 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11, Nov. 4, 1950, 213 U.N.T.S. 221.
23 government, such as local government or organs of the European Union, from being affected by the right to free elections.104
The European Court of Human Rights looks at the right to vote in the same way as the UN Human Rights Committee looks at article 25 ICCPR in the way that it considers that the right does not stand on its own. In the Oran v. Turkey case the European Court held that;
“Moreover, free elections and the freedom of expression, particularly the freedom of political debate, form the foundation of any democratic system. Those two rights are interdependent and mutually reinforcing:...”105
In this judgement the European Court clearly states that having a system of elections does not necessarily mean that a State is doing enough under article 3 of the first Protocol, but that the rights surrounding it should be considered as well, in order to come to a proper judgement.106
The interpretation of the Council of Europe of the right to vote can be summarized as an part of the obligation, which each member to the Optional Protocol I, to hold free elections. The right to vote is derived from this obligation of States to hold free elections. When the European Court judges in a case about the right to vote it will look at it with an eye on other rights protected by the European Convention, such as the right to freedom of expression.
3. Difference in interpretation.
When looking at these two articles it is clear to anyone that the right to vote within the system of the UN should be considered to be different from the right to vote within the system of the Council of Europe. Both systems do consider the right to vote to be more than an isolated right on its own, because both systems acknowledge that it is also a continuation or complementation of other human rights, but there are also many differences between the two.107 I will discuss three differences between the two interpretations of the right to vote and I will try to find a reason for these differences. The right to vote within the UN system has a much broader scope than the right to vote within the Council of Europe system. The first difference that shows this is the fact that the right to vote within the system of the United Nations is part of a more extensive right to participate in public affairs, where the right to vote within the system of the Council of Europe is merely a subjective right, which was granted by the
European Court of Human Rights.
104
ECtHR, 02/09/1998, App. 65/1997/849/1056, (Ahmed and others v. The United Kingdom) para 76
105
ECtHR, 15/04/2014, App. 28881/07 and 37920/07, (Oran v. Turkey) para. 51
106
ECtHR, 15/04/2014, App. 28881/07 and 37920/07, (Oran v. Turkey) para. 51-54
107
HRC, CCPR GC No. 25, 1996, CCPR/C/21/Rev.1/Add.7, p. 3
24 Where article 25 of the International Covenant on Civil and Political Rights gives a right to participate in public affairs, article 3 of the First Protocol of the European Convention merely states that the elections should give expression to the will of the people in their choice of the legislature.
The right to vote in the system of the Council of Europe merely gives the people a right to choose their own legislature, which is of course far less extensive than a right to participate in public affairs for this would mean that you could also have a right to vote for the executive authorities in your country. Within the Council of Europe the right is limited to the selection of agents that will become the legislative power or in other words the lawmaker and does not seem to extent to the executive authorities of government within the State.
Another difference can be found in the amount of choice that is left to the States to implement the provisions provided for in the different systems. Article 25 (a) ICCPR gives citizens the right to participate in public affairs through chosen representatives or directly by themselves. This leaves a lot of policy freedom to the State in the efforts needed to accomplish its obligations under the ICCPR. Article 25 (b) ICCPR does set clear conditions for elections, but because Article 25 (b) cannot be
considered without the choice made in Article 25 (a) ICCPR between direct
participation or indirect participation. This leaves a lot of policy freedom to any State for it can choose to hold elections, but is not bound to hold elections for certain posts, like the legislative branch of government, for that can be done by directly participating citizens. The right to vote in the system of the Council of Europe is derived from the obligations of States under the First Protocol article 3 to hold free elections, which obligations leave little choice to the member States when implementing. They have to hold elections and the citizens do not have a right to direct participation in the affairs of the legislative power.
These differences together give the interpretation of the right to vote within the system of the United Nations a broader scope than the interpretation of the right to vote within the system of the Council of Europe. The reason for this difference can be found in the political process prior to the establishment of a treaty, but I will have to explain something about the organisations in order for this to make sense.
The Council of Europe was founded in 1949 with the purpose of creating a greater unity between its members, which should secure safety and improve the economic and social development of its members, as is stated in the first article of the Statute of the Council of Europe.
25
“The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and
principles which are their common heritage and facilitating their economic and social progress.”108
In the formulation of the article one should see that the organisation was founded as a regional organisation, because the members have a common heritage on the basis of which the greater unity must be achieved. Taking this in consideration, one could come to see why the right to vote within the system of the Council of Europe is more limited than the right to vote within the UN system.
The States united under the banner of the Council of Europe share a common heritage, which can be considered the European heritage. Considering that human rights and the ideal of democracy have been part of the European heritage ever since the age of Enlightenment, 17th and 18th century, this would result in a far more specific right to vote than the right to vote in the UN system.109
The European continent has a history with the system of elections to select
representatives in order to represent the civilians.110 It follows from this tradition that the obligation of States is merely the obligation to hold free elections, without any possibility to differ from the system of elections. This clear tradition has shaped the political process that resulted in the adoption of the first Protocol of the European Convention. Article 3 of the first protocol of the European Convention, and the subjective rights derived from it, gives no other option to its member States than the system of the electoral representative democracy.111
Different from the particular heritage that shaped the member States of the Council of Europe and the political process that resulted in the European Convention and its Protocols, the United Nations is an international organisation with a global aspiration. The United Nations aims to maintain the international peace and security and has member States all over the world.112
The desire of the UN to be a global organisation brings with it that it wants as many members to its organisation as possible. This is only possible when a lot of States can relate to the treaties of the United Nations and in order to make this possible all provisions must be acceptable to the different legal cultures and traditions in the world.113
108
Article 1 (a),Statute of the Council of Europe, 87 U.N.T.S. 103, E.T.S. 1
109
Jack Donnelly, “Universal Human Rights in theory and practice,” Ithaca and London, Cornell University Press 2013 p. 86-88
110
David van Reybrouck, “Tegen Verkiezingen,” 2013 p. 44-46
111
Article 25 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
& ECtHR, 02/03/1987, App. 9267/81, (Mathieu-Mohin and Clerfayt v. Belgium) para. 51
112
Article 1 of the United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
113
Edith Brugmans, “Filosofie van de Mensenrechten,” Nijmegen, Wolf Legal Publishers 2010 p. 125-127
26 The UN treaties are established after a political process in which a lot of States are involved from all around the world. The multitude of different States and the different legal traditions make it difficult to conclude specific provisions that are acceptable for each and every one of them.
This results in the conclusion of treaties with many general provisions such as article 25 of the ICCPR. The provision leaves a lot of room for the member States in the manner in which they secure the participation in public affairs of the citizens. This very general provision allows for a lot of States, whether they are military
dictatorships or liberal democracies does not matter, they are all able to secure the right without having to fundamentally change the political system in the country. In order to make it possible for States to accept the treaty certain provisions have to be very general to make them acceptable.114
It can therefore be concluded that the difference in the interpretation of the right to vote in the two international organisations is the result of the different legal cultures and traditions and their effect on the political process that forms the basis of every treaty.
Clearly this conclusion is unacceptable from the point of view of the natural law school of thought for this would mean that human rights are not universal at all. The different views on human rights expressed in the treaties shows the opposite of universality and is in line with the criticism towards the concept of human rights. Edmund Burke objected against universal rights with a clear reasoning that could explain the different interpretations. Burke held that rights could only be workable when they arise from the specific circumstances of life and the specific lessons learned from struggle and conflict in a particular social context. In other words Burke considered that real rights could only be granted as a result of a particular tradition within an State or a region.115 The idea of abstract universal human rights is almost impossible according to him.
As a result of these regional differences in the interpretation of human rights the natural law school of thought has lost a lot of support, but it is trying to re-establish its position by attempting to reconcile the two sides. Jack Donnelly tries this by stating that human rights are relatively universal. Human rights are universal based on the fact that a lot of States acknowledge the existence of human rights, proven by the great number of States that have joined the regional and UN human right treaties, but
114
Malcolm Shaw, “International law” (7th edition), Cambridge University Press 2014 p. 4-5
115
Richard Thompson Ford, “Universal Right; Down to Earth,” New York and London, W. W. Norton & Company 2012 p. 26-27
