42
1 of the Convention, compliance that, as Article 1(1) states in general, should not be
discriminatory.
159. In the sphere of political rights the guarantee obligation is especially relevant and is
implemented, among other mechanisms, by the establishment of the organizational and
institutional aspects of the electoral processes, and by the enactment of norms and the
adoption of different types of measures to implement the rights and opportunities
recognized in Article 23 of the Convention. In the absence of this action by the State, the
right to vote and to be elected could simply not be exercised. The political and other rights
established in the Convention, such as the right to judicial protection, are rights that
“cannot be merely by virtue of the provisions that embody them, because they are, by their
very nature, ineffectual without a detailed normative regulation, and even without a
complex institutional, economic and human apparatus that endows them with the
effectiveness they claim, as rights under the Convention[…]; if there were no electoral
codes or law, electors’ lists, political parties, propaganda media and mobilization, polling
stations, electoral boards, dates and times for exercising the vote, the right could simply not
be exercised, due to its very nature; similarly, the right to judicial protection cannot be
exercised unless there are courts that grant this right, and procedural norms that discipline
it and make it possible.”55
160. These are the grounds that the Court considers should guide its ruling in this case,
which refers to the way in which Mexico designed the system. The representatives argue
that, “the Mexican legal framework violates the second paragraph of Article 23 of the
Convention by making it an essential that, for a person to be able to take part in an
election, his candidacy must be presented by a political party.”
161. As is evident from the foregoing, the Court finds that it is not possible to apply only
the limitations of paragraph 2 of Article 23 of the American Convention to the electoral
system established in a State. Nevertheless, the measures that the States adopt in order to
ensure the exercise of the rights embodied in the Convention are not excluded from the
Inter-American Court’s jurisdiction when a violation of the human rights established in the
Convention is alleged. Consequently, the Court must examine whether one of these aspects
connected with the organization and regulation of the electoral process and political rights,
that is, the exclusivity of the nomination of candidates to federal office by political parties,
entails an undue restriction of the human rights embodied in the Convention.
*
*
*
162. Prior to this, the Court finds it necessary to indicate that, in general, international
law does not impose a specific electoral system or a specific means of exercising the rights
to vote and to be elected. This is clear from the norms that regulate political rights in both
the universal and the regional sphere, and from the authorized interpretations made by
their organs of application.
163. In the universal sphere, Article 25 of the International Covenant on Civil and Political
Rights, the wording of which is very similar to the provision in the American Convention,
establishes broad parameters concerning the regulation of political rights. When interpreting
this norm, the United Nations Human Rights Committee has stated that “the Covenant does
not impose any specific electoral system,” but rather that any electoral system operating in
a State “must be compatible with the rights protected by Article 25 and must guarantee and
55
Cf. Enforceability of the Right to Reply or Correction (Arts. 14(1), 1(1) and 2 American Convention on
Human Rights). Advisory Opinion OC-7/86 of August 29, 1986. Series A No. 7. Separate opinion of Judge Rodolfo
E. Piza Escalante para. 27.
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