Comparative Views on the Right to Vote in International Law

Abstract

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

Prospects and problems for European legal cooperation concerning prisoners

“…Laws among Council of Europe States vary on the entitlement of prisoners to vote: while a majority do not have a blanket ban, nine States do (which amounts to a substantial minority), and a majority of States either have a blanket ban or restrict the right to vote in the case of serious crimes. 9 This suggests a possible limit on the scope for European cooperation, in that measures of a purely rehabilitative nature may encounter resistance in some or most countries, and that the rationale of punishment must also be addressed (Dothan, 2016). Traditionally, Northern European and especially Scandinavian jurisdictions have been associated with a less punitive appproach, but punitive influences exert effects in these jurisdictions too (Demleitner, 1995; Kommer, 1994; Krajewski 2014, the latter noting the more severe penal climate in Central and Eastern Europe; Pratt et al, 2005; Tonry, 2007, especially pp.…”

“…on the separation of powers) or intellectual legitimacy. In the context of Hirst and subsequent caselaw, the ECtHR judgments can be criticised on the grounds that a right to vote for prisoners is insufficiently grounded in the treaty text and, further, is not yet the subject of a Europe-wide consensus (see further Dothan, 2016). 26 Legislative elaboration of standards is possible.…”