This blog post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.
The November 2020 Presidential election in the USA, which led to the end of the Presidency of Donald Trump, highlights a number of issues with the assumptions around democracy and the protection of human rights. The rise of populism and the election of populist leaders legitimated by a democratic process is something that has long been feared but it is only in more recent years that the fear has really manifested itself. Democracy is seen – and it is often asserted – as the only political system that is compatible with international human rights obligations and the protection of rights at the domestic level. It is certainly true that more authoritarian regimes have historically run rougher shod over individual rights than democratic ones. Indeed, if we consider some of the greatest atrocities of the 20th Century, in numerical terms only, then they all took place under authoritarian regimes. The list is a long and inglorious one with a few examples including, the Soviet Union, China, Germany, Spain, Iraq, Argentina, Chile, Brazil, Congo, Libya, South Africa, Pakistan, Turkey and Burma. This list highlights a number of issues. Clearly some states have transitioned over time from authoritarianism to democracy, Germany and Spain being good examples. Others have oscillated between authoritarianism and democracy. Pakistan is a good example having numerous periods of military rule (including the infamously brutal suppression of Bengalis in East Pakistan – 1947-1971 – which led in time to independent Bangladesh) interspersed with exercises of democracy. Other regimes, not in the list, are different in nature. Here we can consider constitutional monarchies but where the monarch is an absolute ruler. These are commonplace in the Middle East, for example but not only there. The royal families of Saudi Arabia, Bahrain, Qatar and Kuwait, among others, allow no dissent at all and various rights are routinely violated. But none of this is to say that those States which are democratic, whatever that actually means, are free of abuse. Belgium has been a democracy of sorts since 1831 when it held its first election. King Leopold II ran the Congo, however, as a personal fiefdom until 1960. The atrocities committed against the Congolese during Belgium’s colonisation of that territory are among some of the most notorious of the 20th Century, yet rarely referenced in the same breath as many others. Similarly, the Bengal famine of the early 1940s was a direct consequence of British war policy (the first Westminster elections were held in 1708) and led, directly or indirectly, to the foreseeable deaths of up to 3 million Bengalis. Of course, colonised peoples did not have a vote even though their labour and resources contributed significantly to the wealth of the colonial power. On that, even in long established democracies, which hold themselves up as beacons to others, it is worth considering who was initially afforded the franchise and who was not and how this has evolved over time. Those initially enfranchised were often the very privileged only. The US Declaration of Independence 1776, for example, notes in its opening paragraphs:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
But, of course, all men were not created equal. Slaves were not equal, even if men. Slavery was not formally abolished until after the US Civil War. The Fourteenth Amendment to the USA Constitution (1868) granted African Americans the rights of citizenship – which implies the right to vote. However, this did not normally translate into their ability to vote, especially in the southern states of the USA. It was not until the 1965 Voting Rights Act that there was a significant change in the status of African Americans who wished to vote throughout the Deep South. The legacy of the discrimination against African Americans (primarily the descendants of slaves) is still clear to see. The Black Lives Matter movement of 2020 is evidence of that. Women (white or black) were, of course, also awarded the franchise long after men. New Zealand was the first country to extend the franchise to women in 1893, the USA did so in 1920, and in the UK it took until 1928 for women to be afforded the right to vote.
All of this brings into focus that elections and the right to vote are seen as important but is there a right to democracy in international human rights law? The short answer is, no. There is further no real international agreement as to what democracy is and what it entails. Elections are often seen as indicative of a democratic system but alone they are not enough. Article 25 of the ICCPR is the only provision which refers to the matter. The key paragraphs note:
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;
This is a relatively pithy provision. It is worth bearing in mind that there is something about elections; in that they are seen as legitimising regimes and that authoritarians seek the veneer of respectability elections ostensibly provide. Robert Mugabe, for example, an odious despot routinely held elections during his rule in Zimbabwe. Similarly, Islam Karimov, the former president of Uzbekistan, also held them. In both cases they routinely ‘won’ over ninety per cent of the vote. Both were notorious abusers of human rights with an iron grip on their respective nations. So why go through the pretence of periodic elections? It was not for the domestic population, rather about seeking international respectability. Article 25 ICCPR refers to ‘every citizen’ who can stand for election but who does actually stand and is there a level playing field? With regard to who actually stands for and is elected to power; money makes a huge difference. Donald Trump and Joe Biden reportedly spent over $5billion on their election campaigns for the 2020 election. Trump is, of course, a billionaire but Narendra Modi (Prime Minister of India), equally a populist, was a tea seller in Gujrat before his rise to power. Modi, however – a populist Hindu nationalist – is very much an exception, although he has backers (including the notoriously right wing RSS) with exceptionally deep pockets. Finance makes a huge difference and there is no equal playing field. Political donations, which effectively facilitate who can stand for election, are subject to no agreed international rules. Moreover: is the political system within which elections should be held: capitalist, socialist, theological, liberal or authoritarian; can a nation vote for a racist party to come into power via an election; and is an election enough for a democracy and thus the protection of human rights? These are questions to which there are no straightforward answers but further clarity we must seek.
We will come back to these questions and others in Part II of this blog, which will be available in due course.