RIGHTS AND RESPONSIBILITIES OF ELECTION OBSERVERS

Report presented by Mr. Pierre Cornillon, Secretary General of the Inter-Parliamentary Union,
to the International Conference in La Laguna on Freedom of Elections and the International Observation of Elections (Tenerife, 27 February - 2 March 1994)

From a strictly juridical standpoint, there are no rights which do not stem from precise legal provisions; as a corollary, those provisions can establish duties or - more precisely - obligations. It must be noted that none of the existing international legal instruments contains provisions governing the international observation of elections. Similarly, it appears that the constitutions, electoral laws or other legal texts of countries with a long-standing tradition of democracy have no provisions on this subject. The same is true of almost all other countries. However, references to this question have recently appeared in the juridical corpus of certain countries. But these are the exceptions where, in a transitional situation, elections were planned with a large contingent of international observers; this gave rise to the need to organize and regulate their presence. A scrutiny of these few texts reveals that, while some are well done, their contents are rather different and their value uneven. With one or two exceptions, they rank on the lowest rung of the hierarchy of legal texts and are circumstantial texts whose effect did not outlive the elections for which they were devised.

In these circumstances - lack of binding international norms, or even reference norms, and silence on the part of national substantive law - it seems wise to look first into the responsibilities of election observers and then to consider the rights and facilities which they need in order to carry out fully those responsibilities and the obligations which may be laid on them. This means deducing the lex feranda from the moral responsibility stemming from the objective to be attained.

Indeed, for the responsibilities attached to international observers to be well understood, it is first of all necessary to be clear about the aims of their mission. In the light of earlier debates, it may be worth repeating at this point that this has nothing to do with technical assistance and that their mission should not be confused with the supervision or the verification of elections. Three different objectives may be briefly and schematically distinguished:

1. To form an opinion on the electoral process, for themselves or for limited circles. Elections have traditionally been observed by diplomats posted to the countries concerned or by political scientists.
2. To guarantee the electoral process and give support to the régime of the State where the election took place, or the opposite: to denounce a situation and thus condemn a régime. This is likewise a long-standing practice which could be described as a political gesture.
3. To contribute to the promotion of democracy in conformity with the principles of human rights.

To do this, it is essential for both partners to have a convergent approach: For its part, the Government receiving the observers must wish not only to convince both the domestic population and international opinion of the free and fair nature of the election it is organizing, but must also give a sufficient pledge that it wishes, or at the least agrees - however reluctantly, to play by the rules of democracy. For their part, the institutions sending the observers, and the observers themselves, must be motivated by the concern to help the authorities give practical effect to their declared intentions and to encourage by their presence and action both the free and unreserved participation of the citizens and also the activities of all the groups, institutions and other national actors who can contribute to the satisfactory performance of the poll and who should play a major role in subsequent elections. Democracy cannot of course become entrenched in a country through international action alone which can do no more than help the citizens to take their collective destiny in hand.

It goes without saying that this presentation will relate to the international observers whose objectives fall into the third category, and those objectives must be the yard-stick against which their responsibilities are measured.

The responsibilities of international observers

In a matter of such importance, observers bear a heavy responsibility, not only towards the international community which undertakes to make appreciable financial efforts and mobilizes important human resources, but also towards the people of a country who often place great hopes in them. The credibility of the international community is at stake here.

Their action must therefore satisfy three key qualifications: diligence, independence and impartiality.

An institution or an individual must first of all be capable of declining to observe an election. Many speakers here have questioned whether or not it was necessary for the authorities of the receiving country to give their agreement to the presence of foreign observers; I wish to state at the outset that, according to the rationale followed here, such agreement is indispensable. However, receiving a special invitation or acting under a general invitation from the authorities of the country in question is a necessary but not always sufficient condition. Before embarking on the exercise, it is wise to ascertain the wishes of the main protagonists of the country's political life. It is also necessary to check that the minimum conditions for action are guaranteed by the authorities.

Since the act of observing must be carried out above all in terms of the laws and regulations of the country, it is equally necessary before accepting a mission, to obtain these texts or at the very least to gather sufficient information on them to be sure that they offer the minimum formal conditions for the holding of a free and fair election.

To respond to many remarks made earlier on this subject, two points need to be made. In the absence of any international conventions on the conditions for organizing free and fair elections, observation must be carried out essentially in the light of national legislation. This state of affairs will remain unchanged even after the signature and ratification of a possible convention since the standards it may contain could only be of a general nature; national legislation will always be the legal framework governing the particulars of the legislative process and observers will always have to note the degree to which the international and national standards are applied in practice. Furthermore, some speakers have urged that observers should go on the spot even if the national legislation does not offer the minimal conditions for the holding of a free and fair election. It must be clearly stated that their mission would therefore result in a denunciation of that situation, an objective that we have ruled out, and it must also be pointed out that it would be preferable in this case to make such a denunciation in public while refusing to travel to the country concerned rather than running the risk of the authorities' exploiting their presence in the county to greater effect than could result from any condemnation which they could issue.

The responsibilities of observers also include the willingness to make preparations in advance, to be available for a sufficient length of time and to travel inside the country; they also imply the capacity to understand a different and often complex national situation and to communicate by speaking at least a widely used language, if not the national language.

The observation operation must cover the entire electoral process: registration, the electoral campaign, the polling, the counting of votes and proclamation of results; it must also extend - if not exhaustively at least by broad coverage - to the entire country.

The first responsibility is often difficult for one or even several persons to take on, but there is nothing to prevent an institution from sending several teams so as to cover all the phases of the process. The second implies the presence of a sufficient number of observers from the same institution, or co-ordinated work by observers from several bodies.

The independence of observers from the country's authorities and from the different political protagonists depends on the independence of their means and requires absolute transparency of their sources of financing. It can also be shown in a variety of other ways. Independence and impartiality are above all a state of mind; however, election observer missions can find themselves in a difficult situation as they must not only be independent but must be seen as such in the eyes of the population. There are indeed some circumstances where, as was pointed out by another keynote speaker, missions may be led to accept material assistance from the authorities (for example, vehicles for their transport, military escort for their security). This is delicate territory where the attitude and behaviour of the observers will be the determining factor.

As the word itself indicates, an observer must only observe; he is a witness. While he may sometimes serve as a catalyst, he must never become actively involved in the electoral process. Furthermore, in no case can he play the role of prosecution attorney or defence counsel. Moreover, one of the major responsibilities of observers is to make public their findings and conclusions. Their report must relate to the actual performance of the electoral operations in terms of the applicable legislation and regulations and in the light of the criteria which are generally accepted by the international community which, by the way, could benefit from being rapidly codified. It is important for the report to be precise, complete and detailed if only so that one objective is reached: helping to improve the next elections in that country or even in others.

Furthermore, I fully concur with the keynote speaker who stressed the importance of standardizing such reports.

The public nature of their action must not lead observers to make undue use of statements to the media. While it is essential that their findings should be widely known, including in the press, it seems only natural for observers to exercise great restraint in their contacts with the media during their mission. On the other hand, it is of capital importance for observers to notify the authorities as rapidly and precisely as possible of any problem, incident or irregularity they may have witnessed or which was pointed out to them in good faith. This is essential in view of the role of intermediary which the population may wish to see them play in certain cases and since the aim of such missions is not to tally up complaints in order that they can denounce them but to contribute, whenever possible, to the proper performance of the electoral operations.

Of course, the need for impartiality lays an obligation on observers to make contact with all the protagonists on the country's political landscape and generally to act in all seriousness and exercise the rights of which they are assured.

Rights and obligations of international observers

In the light of the above and drawing on the ad hoc norms referred to earlier, this presentation will now turn to the rights which should be available to international observers, the obligations that could be imposed on them and the formalities concerning their presence.

In order to carry out their mission "diligently, independently and impartially", international observers must fully enjoy that fundamental human right: freedom of movement. They must therefore be able to travel throughout the national territory and, if circumstances so require, enjoy the necessary personal security guarantees.

This freedom of movement would of course be meaningless if it did not go hand in hand with the possibility of receiving and communicating information. This right to the co-operation of the authorities has many aspects. It implies that observers can talk freely with any citizens but also with candidates, representatives of the political parties, various associations and groups, representatives of the public or private media and with representatives of the authorities and electoral officers.

In order for them to form an opinion, it is also essential for observers to have access to all documents and material relating to the electoral process. These include not only the legal texts and provisions governing the entire process but also such essential elements as the electoral lists and rolls and voters' registration cards. Here we come up against the problem of the possible obligation for the authorities to provide photocopies of these papers. Apart from the purely legal problem (consulting is not the same as having a copy), the practical difficulties must also be taken into account.

Observers must of course be able to examine, if possible in advance, the whole range of electoral material, starting with the kind of ballot boxes and ballot papers which are to be used, the kind of posters authorized, etc.

The right to have access to these documents and material must be backed up by a right of access to premises. This refers not only to the various meetings and rallies to be held during the campaign but also to the polling stations and counting centres during the tallying of the vote. In some situations, the transport and safe-keeping of ballot boxes in all security and confidence may be a very delicate issue and it is therefore extremely important not only for observers to have access to the places where the boxes are kept but also for them to be able to accompany the boxes on their journey between that place and the polling station if the voting is spread over several days, and certainly during their transport to the centres where the ballots are to be counted.

Some participants have felt that the ballot boxes should not leave the polling station and that the votes should be counted on the spot and on the same day. It must be pointed out that this is not always possible (elections spread over several days) and that on-the-spot counting is not necessarily the safest and most reliable method.

The right of observers to receive the necessary information from the electoral authorities and from those in charge of security or the maintenance of order includes the right to receive from them information not only on complaints that may have been lodged but also on the follow-up action taken on such complaints or other claims. The corollary of this right is twofold: the possibility and the duty to inform those authorities as swiftly as possible of any irregularity or incident which they may have witnessed or which was pointed out to them in good faith. Here again, they have a right to receive answers to their questions. This must, of course, be done within the strict limits of the role of the observers who must refrain from any interference in the organization or carrying out of the elections.

The observers' fundamental responsibility of presenting their findings in a final public report implies both that they must submit the report to the authorities and that they are free to make its contents public in the country.

The exercise of a right and the liability to an obligation imply that those concerned are clearly identified. This raises the question of the accreditation of observers. It seems highly necessary that the presence of foreign observers should be the subject of a formal accreditation procedure which, in turn, confers a status on them.

The first merit of official accreditation is to guarantee that, by coming to a country, an observer is responding to an invitation, whether issued personally or more generally. Such a procedure helps to define the rights and obligations of the holder of the accreditation (and even certain prohibitions on his action); it thus has the merit of giving rise to the adoption of legislation or regulations. It establishes straight away an official relationship between the observer and the country's authorities.

The spectrum of institutions which send or may wish to send observers is very broad. It is therefore quite conceivable that a State may, in the matter of accreditation, distinguish between several categories of observers each having more or less extensive rights and facilities. While the guarantees offered to all categories must never fall short of the minimum needed for the observers to carry out their responsibilities, it is only natural that personal privileges will vary. It is therefore quite conceivable that, in some cases, observers may enjoy privileges identical to those afforded to diplomats under the Vienna Convention.

Accreditation must involve issuing observers with visible distinctive means for their identification - which may be in various forms but which must include an identity card. This enables them both to display their status in order to enjoy the rights accorded to them but also to be readily identifiable to the population while carrying out their activity and, if necessary, to benefit from certain personal security guarantees.

Since accreditation makes it possible to establish the minimal obligations which observers must respect, it is only normal that a process for the withdrawal of accreditation is foreseen to punish serious and well-defined cases when observers do not live up to expectations by failing to respect the obligations or the general code of conduct. In no way should the threat of such withdrawal prejudice the action of observers nor the exercise of their right of expression.

Now we must look at the problem of the authority which is competent to issue the accreditation and distinctive signs. It does not seem to me to be reasonable - on both juridical and practical counts - to envisage, as some have recommended, that competence should be given to an international institution, unless of course that institution is entrusted with organizing the election, as was the case of the United Nations in Cambodia. Competence must therefore be a matter for the country in question. Various national authorities may be responsible for issuing such accreditation, but is seems desirable for this to be done by a body having some degree of independence.

Prospects for normative action

It is legitimate at this stage to ask both whether it is opportune and indeed possible to work out international norms governing the rights and duties of international observers of elections and thus to codify an activity which hitherto has been a matter of simple practice and the few national norms of an ad hoc nature. Of course, we all hope that progress will be made towards establishing a juridical framework for that practice. But careful attention must be given to the kind of standards that could be involved.

The idea of standardizing the practice and rooting it in international law is certainly attractive. However, since an international standard should theoretically be applicable to the entire international community, there is reason to look into what is going on in the world. It can be seen that, at present, international observation is strongly recommended by States where democracy has been firmly established - for a long time or more recently - for elections organized in countries either undergoing a transition process or which do not yet enjoy a solidly established democratic life. These latter countries ask for, or sometime merely accept, the presence of foreign observers. Unfortunately, nothing seems to indicate that the countries of long-standing democratic tradition are willing to open their own elections to international observation.

Can it reasonably be hoped that, relatively soon, all States will ask or accept that the popular consultations which they organize are the subject of formal international observation and will be ready to sign and then ratify a convention binding them in law? I would like to be able to share the optimism expressed by some on this subject, but I have serious doubts which have been reinforced by certain opinions I have listened to at this meeting.

Still with regard to the scope of application and the possibility of restricting it, two limitations can be considered. The first relates to the type of election or consultation in question (local elections or general elections, referendums, etc.). A limitation of that order should not pose insurmountable problems and we could, for example, take up the proposal of one keynote speaker who suggested that international observation should be limited to consultations involving the expression of national sovereignty. On the other hand, if, to overcome the difficulties of universal application mentioned earlier, it is felt that election observations should be limited juridically to particular political situations - as is now the case de facto - nobody should underestimate the difficulty of working out the precise and objective criteria which would make possible a universally acceptable definition of these cases. From the outset, it is crystal clear that everyone would want to be on the right side of the tracks, rather than being assigned to the "purgatory" of those who need to be observed.

At this juncture, I would like to emphasise the great difference existing between the first part and the second part of the draft international convention presented for consideration at this Conference.

The first part dealing with the holding of free and fair elections at regular intervals aims to determine binding legal norms which would develop the existing general norms and would establish the modalities for carrying out the "obligation of result" which some of those norms impose on States. Since the trend towards the holding of relatively free and fair elections is spreading in the world, it may reasonably be hoped that sufficient efforts could lead to such a convention being accepted. I therefore welcome the work which we did yesterday on this part of the text, and I believe this is a great step forward.

The second part, dealing with international observation, leaves me rather puzzled in fact. It piles up the difficulties. Being unable to rely on an international norm at the world level - of either a binding nature or as a reference - this text would amount to establishing an international mechanism to monitor compliance with obligations (those arising from the first part). This monitoring would not be carried out a postiori but a priori, i.e., during the actual electoral process, and, what is more, would not be assigned to a committee of the contracting parties but rather, in the last analysis, to any institution or citizen. Further, as we have seen, the notion of reciprocity, which is important in international law, would be lacking here.

That is why I have sincere doubts about this approach and I fear that the second part of the draft may be detrimental to the successful outcome of the first part, which I would greatly regret.

I would therefore incline towards the preparation, and very swiftly, of a model law or model regulations governing the rights and obligations of international election observers which could be proposed to States wishing to open their elections to foreign observers.

Such a measure has several attractive features. First, it is in line with the current trend and would correspond to a real need since it is quite clear that States which consider receiving foreign observers are more and more aware of the need to regulate the situation.

Second, such model laws or regulations could constitute a very complete package and could thus cover a variety of situations and would above all encourage States wishing to draw on such texts to make provision for rather broad legislation. On the other hand, it may be feared that a convention, by definition more minimalist, would give rise to equally minimalist national legislation. The Inter-Parliamentary Union (IPU) would be very willing to co-operate in the preparation of such models.

That being said, there is a further consideration that must be taken into account: the fact that the action of the observers is inseparable from the object of the exercise.

By sending observers, the international community seeks to ensure that an election has been free and fair. Is there any point in trying to codify the rights and duties of election observers - the modalities of their action - without reaching prior agreement on the subject of their observation, i.e., before defining the criteria which an election must meet if it is to be declared free and fair? Ultimately, those criteria should be the yardstick for the observation of elections. Yesterday we made good progress on a draft convention, but a document of that kind naturally contains fairly general provisions; we still have to come to grips with the details.

Fully aware of this problem, the Inter-Parliamentary Union is in the process of completing a study on free and fair elections in the light of international law and practice which should be published at its statutory session next month in Paris. IPU plans to adopt on that occasion a Declaration of the world-wide parliamentary community - an international act of political scope - establishing the minimum conditions which must be met for an election to merit the qualification of free and fair.

Lastly, it may be interesting to see, in the light of recent experience, the relative urgency of developing a consensus or norms at the international level concerning, on the one hand the rights of observers, and on the other hand their responsibilities.

An exhaustive and scientific study has yet to be made of the countless international missions which have been sent to observe elections in recent years. It is therefore hard to draw conclusions. But if an opinion may be offered, it seems that whereas the missions - invited or authorized - have on the whole enjoyed the minimum rights essential for their action, they have, on the other hand, often demonstrated widely differing notions of the use of those rights and the exercise of their responsibilities. These disparities in their action have sometimes led to different or even conflicting conclusions and have also helped to bring some discredit to this kind of operation, which is highly regrettable.

It is a fact that numerous manuals or codes of conduct have been worked out since Larry Gerber's pioneering work in 1983. The latest in the series has been presented to us here. But today each mission is guided by a different manual, or often by none at all : in conclusion, I would therefore urgently appeal for a redoubling of efforts within the international community so that all election observer missions abide by identical principles and so that their action stems from the same code of conduct. I hope that this Conference may help towards achieving that objective.