Home > 1.1.3 Submission of candidatures > Report on Term-Limits Part I - Presidents
 
 
 
Download file    
 
 
Paragraph 72
 

In addition to the above, according to the case-law of the Inter-American Court of Human Rights, Article 23 of the Convention imposes certain specific obligations on the State. From the moment that Article 23(1) establishes that the right to participate in the conduct of public affairs may be exercised directly or through freely chosen representatives, the State has a positive obligation that is manifested with the obligation to carry out certain actions or conducts, and to adopt measures that arise from the obligation to ensure the free and full exercise of human rights to all the persons subject to their jurisdiction (Article 1(1) of the Convention) and of the general obligation to adopt measures in their domestic law (Article 2 of the Convention). This positive obligation consists in designing a system that allows representatives to be elected to conduct public affairs. Indeed, for political rights to be exercised, the law must establish regulations that go beyond those related to certain State limitations to restrict those rights, established in Article 23(2). The States must organize their electoral systems and establish a complex number of conditions and formalities to make it possible to exercise the right to vote and to be elected. The establishment and application of requirements to exercise political rights is not, per se, an undue restriction of political rights. However, the power of the States to regulate or restrict rights is not discretional, but is limited by international law, which requires compliance with certain obligations that, if they are not respected, make the restriction unlawful and contrary to the American Convention. The conditions and requirements that must be fulfilled when regulating or restricting the rights and freedoms embodied in the Convention, are: the lawfulness of the restrictive measure; the purpose of the restrictive measure and the necessity in a democratic society and proportionality of the restrictive measure. As regards the purpose, Article 23 of the Convention does not explicitly establish the legitimate causes or permitted purposes by which the law may regulate political rights. Indeed, this Article merely establishes certain aspects or reasons (such as civil or mental capacity and age) on the basis of which political rights may be regulated in relation to their titleholders, but does not determine explicitly either the purposes or the specific restrictions that will necessarily have to be imposed when designing an electoral system, such as electoral districts and others. However, the legitimate goals that the restrictions should pursue arise from the obligations that can be inferred from Article 23(1) of the Convention.