The concept of "free and fair elections" was developed in the context of decolonization. It made one of its earliest appearances in a 1956 United Nations report devoted to the accession of Togo to independence (John M. Ebersole, 1992). It has still no accepted definition, for the simple reason that universal, regional intergovernmental organizations and NGOs use the adjectives "free" and "fair" interchangeably with those of "honest", "genuine", "impartial" "sincere", "democratic" or "transparent". Actually, freedom concerns participation and choice, while fairness has to do with equality, impartiality and non-discrimination (Guy Goodwin-Gill, 2006).

Elections can be considered as "free" if conducted in the absence of significant pressure, intimidation or violence on voters, and labelled "fair" when all candidates are basically treated on a non-discriminatory basis (Elklit and Svensson, 1997). In any case, the prerequisites of freedom are more easy to achieve and be assessed than those of fairness. An election can basically meet the standard of freedom without offering really equal chances to all candidates or parties – and not counting the challenges posed by electronic voting for transparency and accountability, as well as by absenteeism, early, or postal voting for secret ballot (Guy Goodwin-Gill, 2006). Anyhow, free and fair elections is a matter of common interest for long-standing democracies as well as States in transition from authoritarianism to democratic governance, and from war to peace.

As for international election observation, it was inaugurated in 1857 by a Commission of European powers, which oversaw a plebiscite in the challenged territories of Moldavia and Wallachia (Yves Beigbeder, 1994). The trend developed after WWII under the aegis of the United Nations in relation to decolonization, peaceful democratic transitions and peacekeeping operations. In the post-Cold War era, it has become current practice. However, since the late 1990s, the United Nations focuses on electoral technical assistance to Member States upon request and rarely conducts direct observation on the ground which is actually carried out by a host of regional intergovernmental organizations and NGOs.

Normative and operational content

Free and fair elections belong to the corpus of international human rights. Albeit a domestic matter, their conduct is addressed in the 1948 Universal Declaration of Human Rights (Art. 21) and other documents, including the Inter-Parliamentary Union's 1997 Universal Declaration on Democracy. Based on the premise that only periodic free and fair elections allow the true expression of the political will of the people and the establishment of a legitimate government, all texts recognize the rights to vote, be elected and participate (directly or through chosen representatives) in public affairs – rights which cannot be effectively exercised in the absence of freedom of association, expression and assembly.

If international law does not formally recognize a legal right to a representative democratic government, it prescribes that an election should reflect the true will of the people through the respect of a number of well-defined basic human rights and in conformity with basic election standards mentioned in the definition of the concept proposed above.

It was only in October 2005 that, at the joint initiative of the United Nations Electoral Assistance Division (UNEAD) and two American NGOs (the Carter Center and the National Democratic Institute - NDI), a Declaration of Principles for International Election Observers and a companion Code of Conduct were framed.

The 2005 Declaration offers the first ever universal definition of international election observation in the following terms: "the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis".

Observation is now expected to take place if four preconditions are met. First, the country holding an election must issue a formal invitation sufficiently in advance to allow adequate observation planning. Indeed, when not foreseen by a peace accord or the mandate of a United Nations peacekeeping operation, the observation of electoral consultations is, according to an established practice, triggered by a request – which is facultative, except in the OSCE area where States are committed, under § 8 of the Copenhagen Document, to invite observers from other OSCE participating States as well as any NGOs wishing to do so.

Second, the host State must guarantee the safety and full freedom of International Election Observation Mission (IEOM) agents (official accreditation, unimpeded access to all persons and technologies involved in the election process, freedom of movement around the country, freedom to publish findings and recommendations, etc.), possibly in a memorandum of understanding.

Third, IEOMs have to seek acceptance of their presence by all major political competitors. Fourth, no IEOM will be sent to a country where its presence could be interpreted as giving legitimacy to an obviously predictable undemocratic electoral consultation. OSCE's sophisticated approach to the matter is, here, worth mentioning: once assurances are obtained from the inviting State, the Office for Democratic Institutions and Human Rights (ODIHR) establishes a Needs Assessment Mission to evaluate whether conditions exist to allow a credible free and fair election; in case of positive assessment, a full-fledged IEOM is deployed to observe the whole election cycle; if major inconsistencies are detected, there will be a limited-size mission which will leave the country before election day; when the conditions for a democratic election are obviously inexistent, no observation will take place.

Relevance to peacebuilding

Alongside disarmament, demobilization and reinsertion of former combatants in civil society (DDR), socio-economic reconstruction, return and reintegration of refugees and displaced persons, democratic governance, transitional justice, etc., free and fair elections are part and parcel of peacebuilding programmes. As such, they serve three main functions. First, given that elections can be tainted by multiple forms of frauds (ballot-box stuffing, voter intimidation, etc.), the presence of international observers can deter electoral misconduct, encourage voter participation and guarantee the establishment of a government bearing the seal of political legitimacy. Second, elections are expected to trigger a process of sustainable peace by paving the way for democratic governance and fostering national reconciliation. Third, they signal the closing phase of the latter (just as DDR normally constitute its starting point), while also providing – under the guise of an "exit strategy" – a convenient alibi for a hasty international disengagement.

Since the end of the Cold War, the United Nations has deployed many peacekeeping operations, including an electoral component mandated to supervise the conduct and regularity of free and fair elections, especially in Africa (Angola, Burundi, Central African Republic, Congo, Cτte d'Ivoire, Liberia, Mozambique, Namibia and Sierra Leone and the Americas (El Salvador and Haiti). The OSCE played a similar role in relation to post-conflict consultations in Albania, Croatia, Macedonia and Tajikistan. In the exceptional cases where both institutions assumed the responsibility for the direct organization of elections (in Cambodia, Croatia and East Timor for the UN, and in Bosnia and Herzegovina and Kosovo for the OSCE), they abstained from supervision – lest to appear as a judge and party – in favour of thirdparty intergovernmental actors.

A number of those consultations did contribute, at various degrees, to civil peace and stabilization: this was the case in Albania, El Salvador, Macedonia, Mozambique and Namibia. Others produced, as in Cambodia, Kosovo and Liberia, a superficial or short-lived normalization.

Indeed, an initial post-conflict free and fair election represents just a preliminary step to put democracy right on track.

It is a starting point of a basically symbolic nature, which cannot guarantee the further nurturing, let alone the creation, of democracy from scratch.