French authorities in the legal limbo
In March 2017, AEGEE Election Observation had to call off its already planned mission to the presidential elections in France. The reason for this was that the French authorities had failed to accredit the mission.
From our first request on 17 January 2017, we spent weeks reaching various French authorities, to no avail: The officers dealing with our request had either not understood the concept of election observation or were not aware of legal possibilities to accredit foreign, non-governmental election observers. All further efforts to reach someone competent in the French ministry of foreign affairs proved fruitless.
Following own research, we had been aware of the fact that there is indeed no concrete French legislation on international election observation. But given France's OSCE membership and co-authorship of relevant international declarations (see below), we had silently expected French authorities to have at least an administrative provision for handling requests like ours – or, in absence of such a provision, the political will to act in the spirit of said declarations.
International obligations
In the context of the Organization for Security and Co-operation in Europe (OSCE), all European governments have signed multiple declarations, two of which contain very specific commitments to facilitating international election observation.
Art. 8 of the Copenhagen Document of 1990 states:
The participating States consider that the presence of observers, both foreign and domestic, can enhance the electoral process for States in which elections are taking place. They therefore invite observers from any other CSCE participating States and any appropriate private institutions and organizations who may wish to do so to observe the course of their national election proceedings, to the extent permitted by law. They will also endeavour to facilitate similar access for election proceedings held below the national level. Such observers will undertake not to interfere in the electoral proceedings.
Art. 25 of the Istanbul Charter for European Security of 1999 states:
We reaffirm our obligation to conduct free and fair elections in accordance with OSCE commitments, in particular the Copenhagen Document 1990. We recognize the assistance the ODIHR can provide to participating States in developing and implementing electoral legislation. In line with these commitments, we will invite observers to our elections from other participating States, the ODIHR, the OSCE Parliamentary Assembly and appropriate institutions and organizations that wish to observe our election proceedings. We agree to follow up promptly the ODIHR’s election assessment and recommendations.
It has to be acknowledged that these documents are not legally binding and cannot be enforced in court. But they do constitute a political commitment that we should expect governments to honour.
International election observation and national legislation
AEGEE Election Observation has not yet conducted specific research to this extent, but after 17 observation missions since 2014 it has become clear that legislation on international election observation is extremely heterogeneous across European states.
To highlight some positive examples, the United Kingdom, Ukraine, and Bosnia and Herzegovina have specific and appropriate regulations for the registration and conduct of international election observation missions, while Spain, the Netherlands, and France have none.
This shows that the political commitments cited above are either not based on a common understanding or are not accorded the same relevance by their different signatory states. In any case, the result is a legal arbitrariness that is particularly unfortunate in the political context of today, where a discrepancy between European states' political commitments and the respective governments' good faith with regard to those commitments is increasingly becoming the rule rather than the exception.
The fact that AEGEE Election Observation was nevertheless able to deploy missions for the parliamentary elections of 20 December 2015 in Spain and the parliamentary elections of 15 March 2017 in the Netherlands does in fact make the situation even more arbitrary.
- In Spain, as in France, it was suggested to us that in the absence of clear regulations, we should simply ask every single polling station president for ad-hoc permission to observe. This has nothing to do with legal certainty, but AEGEE Election Observation decided to take the risk – and was rewarded: Out of more than 100 polling stations visited, only three presidents denied our observers entry. However, anticipating a different experience in France, we decided not to take this gamble once more.
- In the Netherlands, after a marathon of emails and phone calls similar to the French case, we eventually received the generous and competent assistance of the Dutch ministry of foreign affairs, which, not out of legal necessity but out of a sense of political obligation, provided our mission with far more support than originally requested. On this occasion we would like to express once more our gratitude for the hospitality we experienced in the Netherlands!
While the attitude of some public institutions and individual public servants deserves praise, it must be recognised that for the sake of transparency – which is the main concern of any election observation endeavour – the current legal situation in Europe does not meet desirable standards.
Acknowledgement
This article has the primary purpose of launching the documentation of the legal patchwork that exists in Europe with regard to international election observation. As AEGEE Election Observation organises more missions and gains more experience in the upcoming years, we hope to address this problem more comprehensively in the future.
On this occasion AEGEE Election Observation would like to warmly thank its appointed coordinators Aliénor Pirlet, Dilek Gürsel and Laura Cogels for their work in preparing an election observation mission to France that could eventually not take place.
