HUMR5120
Substantive Rights
Political Rights
10 November 2008:
Political Rights
Maria Lundberg, NCHR
1
Political Rights
• Interdependence and indivisibility of rights:
• Public participation and free elections
• The right to self-determination (CCPR
Gen.Comment 25, para.2)
– Internal aspects
– Political dimensions
• Freedom of expression, association and
assembly (CCPR Gen.Comment 25, paras.8, 12, 25)
– Limitations (“necessary in a democratic society”) to Art. 11 of the
ECHR: Refah Partisi (The Welfare Party) and others v. Turkey
(App. 41340/98, 41342/98, 41343/98,41344/98), Grand
Chamber Judgment 13 February 2003
10 November 2008:
Political Rights
Maria Lundberg, NCHR
2
Political rights
• Art. 21 UDHR
1. Everyone has the right to take part in the
government of his country, directly or through
freely chosen representatives.
2. Everyone has the right of equal access to
public service in his country.
3. The will of the people shall be the basis of the
authority of government; this will shall be
expressed in periodic genuine elections which
shall be by universal and equal suffrage and
shall be held by secrete vote or be equivalent
free voting procedures.
10 November 2008:
Political Rights
Maria Lundberg, NCHR
3
A right to democracy?
• Art. 21 UDHR:
– Government based on the will of the people
• Art. 1 ICCPR and ICESCR:
– All peoples have the right to freely determine their
political status and to enjoy the form of their
constitution or government (CCPR Gen.Comment 25,
para.2)
• Equality as the basis for public participation
• Political freedoms of expression, information,
assembly and association
10 November 2008:
Political Rights
Maria Lundberg, NCHR
4
Democracy
• General Comment 25 of the HRCmmttee
(adopted in 1996) puts an emphasis on
“democratic governance”
• “Article 25 lies at the core of democratic
government based on the consent of the
people.” (para.1)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
5
Interdependence:
Human Rights and Democracy
• Interdependence of human rights, democracy
and the rule of law
• Preamble of the ECHR (1950):
– Reaffirming their profound belief in those fundamental
freedoms which are the foundation of justice and
peace in the world and are best maintained on the
one hand by an effective political democracy and
on the other hand by a common understanding and
observance of the human rights upon which they
depend; (emphasis added)
– “…European countries which are like-minded and
have a common heritage of political traditions, ideals,
freedom and the rule of law”
10 November 2008:
Political Rights
Maria Lundberg, NCHR
6
Interdependence:
Human Rights and Democracy
• The Charter of Paris for a New Europe
(Declaration by Heads of State of the
CSCE,1990)
– Human rights, democracy and the rule of law
• The Vienna Declaration and Programme
of Action (World Conference on Human
Rights, 1993)
– Democracy, development and respect for
human rights
10 November 2008:
Political Rights
Maria Lundberg, NCHR
7
Participation in Public Affairs
• Art. 25 ICCPR
• Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and
without any 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 and 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;
• © To have access, in general terms of equality, to public
service in his country.
10 November 2008:
Political Rights
Maria Lundberg, NCHR
8
Right to free elections
• ECHR includes a more limited right
• Art. 3 of Protocol 1 to the ECHR:
• The High Contracting Parties undertake to
hold free elections at reasonable intervals
by secrete ballot, under conditions which
will ensure the free expression of the
opinion of the people in the choice of
legislature.
• Cf. Art. 25(b) ICCPR
10 November 2008:
Political Rights
Maria Lundberg, NCHR
9
Art. 3 of 1st Protocol ECHR
• Practice of the ECHR clarifies that it is a
right which can be invoked by individuals.
• “…the wording of Article 3 does not reflect
any difference of substance from other
substantive clauses…” (Mathieu-Mohin and
Clerfayt v. Belgium, Judgment of 2 March 1987, Ser. A.,
No. 113, paras 48-50)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
10
Non-discrimination
• Explicit reference in Art. 25.1 ICCPR
– However, permissible distinction for a legitimate
purpose and on objective and reasonable grounds
(CCPR General Comment 18, para. 13)
• Art. 14 ECHR applies to also to rights included in
the Protocols to the ECHR
• Art. 5© ICERD
• Art. 7 CEDAW, Convention of the Political rights
of Women (UN, 1953))
10 November 2008:
Political Rights
Maria Lundberg, NCHR
11
Citizens
• Art. 25 ICCPR grants rights to ”every
citizen” (Art.1.2 ICERD)
• Art. 16 ECHR – restriction to political
activities of aliens are allowed
• Non-discrimination in naturalisation (Art.
1.3 ICERD) and among foreign citizens if
granted political rights
10 November 2008:
Political Rights
Maria Lundberg, NCHR
12
Limitations
• Art. 25 ICCPR ”and without unreasonable restrictions”
• Objective and reasonable restrictions
– Cf. Anatonia Ignatane v. Latvia (Comm. No 884/1999), 2001
– Cf. the ECHR: Legitimate restrictions Mathieu-Mohin and Clerfayt v.
Belgium, Judgment of 2 March 1987, Ser. A., No. 113, para. 53.
• Not illiteracy, physical disability, education or property (CCPR
Gen.Comment 25, para.10)
• States must not exclude persons from the effective enjoyment
– Take effective measures against impediments such as literacy,
language (minority languages), poverty… (CCPR Gen.Comment 25,
para.12)
• Evaluation on case by case basis (Nowak, p. 593, para.49)
– Proportionality
– Overall political situation
– Cf. Marie-Helene Gillot v. France (Comm.932/2000), 2002
10 November 2008:
Political Rights
Maria Lundberg, NCHR
13
Participation in public affairs
• A broad concept included in Art. 25 (a) ICCPR
• “in particular the exercise of legislative,
executive and administrative powers. It covers
all aspects of public administration, and the
formulation and implementation of policy at
international, national, regional and local levels.”
(Gen. Comment 25, para 5)
• Directly or indirectly “through freely chosen
representatives” (Art. 25(b) ICCPR - elections)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
14
Free elections
• Art. 25(b) ICCPR – the right to vote and be
elected)
• The right to free elections in Art. 3 Protocol 1 to
ECHR is limited to the legislature.
• Legislature:
– the institutions established by the constitutions of the
Contracting Parties and the international undertakings
affecting the legislative powers of the legislative body
under consideration.
– Not only central powers, but also legislature which
has a degree of autonomy (Jacobs and White, pp.
392-393).
10 November 2008:
Political Rights
Maria Lundberg, NCHR
15
Electoral systems
• States have discretion:
• CCPR- “Although the Covenant does not impose any particular
electoral system, any system operating in the state party must be
compatible with the rights protected by article 25 and must
guarantee and give effect to the free expression of the will of the
electors.” (CCPR Gen.Comment 25, para.21)
• ECHR – States have a broad margin of appreciation in their choice
of system and the conditions that they apply. Conditions shall not
curtail the rights in question to such an extent as to impair their very
essence and deprive them of their effectiveness; that they are
imposed in pursuance with a legitimate aim; and that the means
employed are not disproportionate… Mathieu-Mohin and Clerfayt v.
Belgium, Judgment of 2 March 1987, Ser. A., No. 113, paras. 52-53
10 November 2008:
Political Rights
Maria Lundberg, NCHR
16
Electoral principles
– Universal suffrage
– Equal suffrage
•
Cf, Matyus v. Slovakia, (Comm. No. 923/2000),
2002.
– Secret ballot
– Free elections (See Nowak, pp. 576-584)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
17
Equal access to public service
positions
• Art. 25© ICCPR
• Positions in the legislature, executive and
judiciary appointed by government
• Processes for appointment, promotion,
suspension and dismissal or removal from
positions
• Procedural guarantees for equal chances for
filling or remaining in a position
• Rule of non-discrimination applies
• Affirmative action - (CCPR General Comment
18, para. 10)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
18
Cases
Minorities:
Apirana Mahuika et. al.v. New Zealand
(Comm. 547/1993)
Ilmari Länsman et al v. Finland (Comm.
511/1992)
Antonina Ignatane v. Latvia (Comm.
884/1999)
10 November 2008:
Political Rights
Maria Lundberg, NCHR
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HUMR5120 Substantive Rights