Identifying and Enforcing Back-End Electoral Rights in International Human Rights Law

From Kenya to Afghanistan, Ukraine, the United States, Mexico, and Iran, no region or form of government has been immune from the unsettling effects of a contested election. The story is familiar, and, these days, hardly surprising: a state holds elections, losing candidates and their supporters claim fraud, people take to the streets, diplomats and heads of state equivocate, and everyone waits for the observers’ reports. It is the last chapter of this story-the resolution-that remains unfamiliar and still holds the potential to surprise. The increasing focus on and importance of the resolution of contested elections, that resolution’s link to the fundamental human rights of the voters and of the candidates, and its underlying threat to internal and external stability all directly affect not only the election-holding state but also the international community writ large. The legal framework underlying contested elections is unsettled. U.N. and regional treaties have enshrined a right to political participation, the most easily definable element of which is the specific right to free and fair elections. International organizations have devised comprehensive standards and practices for observing elections and for pronouncing their legitimacy or lack thereof. Protections abound in international jurisprudence on the rights of an individual to cast a vote and to stand as a candidate for election. And yet, despite the fact that these “front-end” participatory rights are only realized if the results are “genuine” or “authentic,” there has traditionally been little support in international human rights law for ensuring the legitimacy of the “back end” of the electoral process-that is, the right of a voter to have his vote counted and to have the electoral result reflect the will of the people. This Note argues that this imbalance is diminishing and that a right to a legitimate and accurate electoral result is emerging as a recognized and fundamental component of the more-established right to free and fair elections.