In December 2017, the Human Rights and Election Standards initiative at the Carter Center, in collaboration with United Nations Office of the High Commissioner for Human Rights (OHCHR), issued a Plan of Action that was the culmination of two years of analysis and debate regarding a human rights approach to elections. Part of their plan recognized the need for well-written and targeted recommendations for implementing a transition to democracy. This article is a first step towards drafting such recommendations. The right to free and fair elections is a well-established norm in international law; some scholars even argue it is a fundamental human right. Research and scholarly works in this area focus heavily on elections in newly-formed democracies within the developing world following civil war or other internal strife; little-to-no attention is paid to the responsibility an occupying power has to implement free and fair elections after it is victorious in armed conflict. While it is generally recognized no single electoral method is suitable to all nations and peoples, significant international and regional treaties, including the International Covenant on Civil and Political Rights, The Universal Declaration of Human Rights, The European Convention on Human Rights and Fundamental Freedoms, and the Charter of the Organization of American States, protect the claim of citizens to universal and equal suffrage. What is not established are the obligations on a victor and occupier, post-conflict, to enact free and fair elections for the people they now govern, even when the purpose of the conflict was to promote a democratic way of life. The issue is particularly salient when a long-term occupation is established, effectively removing the defeated nation's ability to govern itself. And if the occupier is a long-standing democratic nation, even less attention is given to whether their decisions regarding electoral methods meet internationally-established norms. As a cornerstone of democracy, self-rule should be enacted as soon as possible, even if it results in new and less-experienced political leaders, but even the most basic question surrounding an alleged human right has yet to be answered: How soon post-conflict should the election process begin? Timeliness of elections for transitioning democratic nations is a new area of research. The importance of determining the appropriate time for implementing elections, with the proposition earlier is better, is illustrated in this article through three case studies wherein a victorious Western occupier (the United States) oversaw a transition to democracy. The first two case studies examine the post-World War II occupations of Japan and Germany, which contrast a short- and long-term timeline for implementation of a new national government, but also include early local and regional elections to promote self-governance and democratic roots. The third case is 2003 Iraq, which is an example of a long-term process-more than two years-leading up to the first democratic elections at the national level with no earlier votes at local or regional levels. Each of these separate approaches impacted party formation, demographic and social representation, and make-up of the respective nation's long-term government. A model approach is then presented, advocating for early, albeit not perfect, elections for the purpose of promoting democracy (i.e., citizens learn by doing) and establishing national legitimacy on the global stage through sovereignty.
Withholding Democracy: The Timeliness of Self-Governance in a PostConflict Occupation,
Loy. U. Chi. Int'l L. Rev.
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