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Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy

Northern Ireland Legal Quarterly, Vol. 61, No. 3, pp. 263-279, 2010

18 Pages Posted: 3 Sep 2010 Last revised: 22 Jun 2012

Rory O'Connell

Ulster University - Transitional Justice Institute

Date Written: September 3, 2010

Abstract

The European Convention on Human Rights (ECHR) speaks of the importance of an “effective political democracy” in its Preamble, though it is only in Article 3 of Protocol 1 (P1-3) that we find a right to free elections. This paper discusses the role of “positive obligations” under P1-3.

This paper outlines the positive obligations in P1-3 focusing on obligations where the state is required to do more than just change the law. This may mean providing resources or facilities, adopting regulatory frameworks or creating new institutions. The paper highlights specific positive obligations that need to be further developed in the jurisprudence of the European Court of Human Rights (ECtHR). Sometimes these can be developed by analogy with positive obligations recognised in other areas of ECtHR jurisprudence. However, beyond these cases, states should ensure that members of vulnerable and disadvantaged minorities are able to participate in the electoral process and should ensure that dominant political groups cannot abuse their political power to exclude other parties unfairly. This is necessary to realise equal political rights.

The second section of this paper sketches some preliminary points about the Strasbourg institutions’ approach to P1-3. After that, the third section identifies circumstances where the ECtHR should apply a more intense scrutiny in P1-3 cases. The fourth, fifth and sixth sections look at positive obligations relating to the right to vote, the right to run for election and the regulation of political parties.

Keywords: Political Equality, Democracy, European Convention on Human Rights

JEL Classification: K10

Suggested Citation

O'Connell, Rory, Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy (September 3, 2010). Northern Ireland Legal Quarterly, Vol. 61, No. 3, pp. 263-279, 2010. Available at SSRN: https://ssrn.com/abstract=1671615

Rory O'Connell (Contact Author)

Ulster University - Transitional Justice Institute ( email )

Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

HOME PAGE: http://www.transitionaljustice.ulster.ac.uk/

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